Document 52012PC0011

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)

52012PC0011

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) /* COM/2012/011 final - 2012/0011 (COD) */

EXPLANATORY MEMORANDUM

1.
CONTEXT OF THE PROPOSAL

This explanatory memorandum presents in
further detail the proposed new legal framework for the protection of personal
data in the EU as set out in Communication COM (2012) 9 final[1]. The proposed new legal
framework consists of two legislative proposals:

–
a proposal for a Regulation of the European
Parliament and of the Council on the protection of individuals with regard to
the processing of personal data and on the free movement of such data (General
Data Protection Regulation), and

–
a proposal for a Directive of the European
Parliament and of the Council on the protection of individuals with regard to
the processing of personal data by competent authorities for the purposes of
prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, and the free movement of such data[2].

This explanatory memorandum concerns the legislative
proposal for a General Data Protection Regulation.

The centrepiece of existing EU legislation
on personal data protection, Directive 95/46/EC[3],
was adopted in 1995 with two objectives in mind: to protect the fundamental
right to data protection and to guarantee the free flow of personal data
between Member States. It was complemented by Framework Decision 2008/977/JHA
as a general instrument at Union level for the protection of personal data in
the areas of police co-operation and judicial co-operation in criminal matters[4].

Rapid technological developments have
brought new challenges for the protection of personal data. The scale of data
sharing and collecting has increased dramatically. Technology allows both
private companies and public authorities to make use of personal data on an
unprecedented scale in order to pursue their activities. Individuals
increasingly make personal information available publicly and globally.
Technology has transformed both the economy and social life.

Building trust in the online environment is
key to economic development. Lack of trust makes consumers hesitate to buy
online and adopt new services. This risks slowing down the development of
innovative uses of new technologies. Personal data protection therefore plays a
central role in the Digital Agenda for Europe[5],
and more generally in the Europe 2020 Strategy[6].

Article 16(1) of Treaty on the Functioning
of the European Union (TFEU), as introduced by the Lisbon Treaty, establishes
the principle that everyone has the right to the protection of personal data
concerning him or her. Moreover, with Article 16(2) TFEU, the Lisbon Treaty introduced
a specific legal basis for the adoption of rules on the protection of personal
data. Article 8 of the Charter of
Fundamental Rights of the EU enshrines protection of
personal data as a fundamental right.

The European Council invited the Commission
to evaluate the functioning of EU instruments on data protection and to
present, where necessary, further legislative and non-legislative initiatives[7]. In its resolution on the
Stockholm Programme, the European Parliament[8]
welcomed a comprehensive data protection scheme in the EU and among others
called for the revision of the Framework Decision. The Commission stressed in
its Action Plan implementing the Stockholm Programme[9] the need to ensure that the
fundamental right to personal data protection is consistently applied in the
context of all EU policies.

In its Communication on “A comprehensive approach on personal data protection in the European
Union”[10],
the Commission concluded that the EU needs a
more comprehensive and coherent policy on the fundamental right to personal
data protection.

The current framework remains sound as far
as its objectives and principles are concerned, but it has not prevented
fragmentation in the way personal data protection is implemented across the
Union, legal uncertainty and a widespread public perception that there are
significant risks associated notably with online activity[11]. This is why it is time to
build a stronger and more coherent data protection framework in the EU, backed
by strong enforcement that will allow the digital economy to develop across the
internal market, put individuals in control of their own data and reinforce
legal and practical certainty for economic operators and public authorities.

2.
RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES
AND IMPACT ASSESSMENT

This initiative is the result of extensive
consultations with all major stakeholders on a review of the current legal
framework for the protection of personal data, which lasted for more than two
years and included a high level conference in May 2009[12] and two phases of public
consultation:

–
From 9 July to 31 December 2009, the Consultation
on the legal framework for the fundamental right to the protection of personal
data. The Commission received 168 responses, 127 from individuals, business
organisations and associations and 12 from public authorities.[13]

–
From 4 November 2010 to 15 January 2011, the Consultation
on the Commission's comprehensive approach on personal data protection in the
European Union. The Commission received 305 responses, of which 54 from
citizens, 31 from public authorities and 220 from private organisations, in
particular business associations and non-governmental organisations.[14]

Targeted consultations were also conducted
with key stakeholders; specific events were organised in June and July 2010
with Member State authorities and with private sector stakeholders, as well as
privacy, data protection and consumers' organisations[15]. In November 2010, European
Commission’s Vice-President Reding organised a roundtable on the data
protection reform. On 28 January 2011 (Data Protection Day), the European
Commission and the Council of Europe co-organised a high level conference to
discuss issues related to the reform of the EU legal framework as well as to the
need for common data protection standards worldwide[16]. Two conferences on data
protection were hosted by the Hungarian and Polish Presidencies of the Council
on 16-17 June 2011 and on 21 September 2011 respectively.

Dedicated workshops and seminars on specific
issues were held throughout 2011. In January ENISA[17] organised a workshop on data
breach notifications in Europe[18].
In February, the Commission convened a workshop with Member States' authorities
to discuss data protection issues in the area of police co-operation and
judicial co-operation in criminal matters, including the implementation of the
Framework Decision, and the Fundamental Rights Agency held a stakeholder
consultation meeting on "Data Protection and Privacy". A discussion
on key issues of the reform was held on 13 July 2011 with national Data
Protection Authorities. EU citizens were consulted through a Eurobarometer
survey held in November-December 2010[19].
A number of studies were also launched.[20]
The “Article 29 Working Party”[21]
provided several opinions and useful input to the Commission[22]. The European Data Protection
Supervisor also issued a comprehensive opinion on the issues raised in the
Commission's November 2010 Communication[23].

The European Parliament approved by its
resolution of 6 July 2011 a report that supported the Commission’s approach to
reforming the data protection framework.[24]
The Council of the European Union adopted conclusions on 24 February 2011 in
which it broadly supports the Commission's intention to reform the data protection
framework and agrees with many elements of the Commission's approach. The European
Economic and Social Committee likewise supported the Commission's aim to ensure
a more consistent application of EU data [25]protection
rules across all Member States an appropriate revision of Directive 95/46/EC.[26]

During the consultations on the
comprehensive approach, a large majority of stakeholders agreed that the
general principles remain valid but that there is a need to adapt the current
framework in order to better respond to challenges posed by the rapid
development of new technologies (particularly online) and increasing
globalisation, while maintaining the technological neutrality of the legal
framework. Heavy criticism has been expressed regarding the current
fragmentation of personal data protection in the Union, in particular by
economic stakeholders who asked for increased legal certainty and harmonisation
of the rules on the protection of personal data. The complexity of the rules on
international transfers of personal data is considered as constituting a
substantial impediment to their operations as they regularly need to transfer
personal data from the EU to other parts of the world.

In line with its “Better Regulation”
policy, the Commission conducted an impact assessment of policy alternatives. The
impact assessment was based on the three policy objectives of improving the
internal market dimension of data protection, making the exercise of data
protection rights by individuals more effective and creating a comprehensive
and coherent framework covering all areas of Union competence, including police
co-operation and judicial co-operation in criminal matters. Three policy
options of different degrees of intervention were assessed: the first option
consisted of minimal legislative amendments and the use of interpretative
Communications and policy support measures such as funding programmes and
technical tools; the second option comprised a set of legislative provisions
addressing each of the issues identified in the analysis and the third option
was the centralisation of data protection at EU level through precise and
detailed rules for all sectors and the establishment of an EU agency for
monitoring and enforcement of the provisions.

According to the Commission's established
methodology, each policy option was assessed, with the help of an Interservice
steering group, against its effectiveness to achieve the policy objectives, its
economic impact on stakeholders (including on the budget of the EU institutions),
its social impact and effect on fundamental rights. Environmental impacts were
not observed. The analysis of the overall impact led to the development of the
preferred policy option which is based on the second option with some elements
from the other two options and incorporated in the present proposal. According
to the impact assessment, its implementation will lead inter alia to
considerable improvements regarding legal certainty for data controllers and
citizens, reduction of administrative burden, consistency of data protection
enforcement in the Union, the effective possibility of individuals to exercise
their data protection rights to the protection of personal data within the EU
and the efficiency of data protection supervision and enforcement. Implementation
of the preferred policy options are also expected to contribute to the
Commission's objective of simplification and reduction of administrative burden
and to the objectives of the Digital Agenda for Europe, the Stockholm Action
Plan and the Europe 2020 strategy.

The Impact Assessment Board delivered an
opinion on the draft impact assessment on 9 September 2011. Following the
IAB opinion, the following changes were made to the impact assessment:

–
The objectives of the current legal framework (to
what extent they were achieved, and to what extent they were not), as well as
the objectives of the envisaged reform were clarified;

–
More evidence and additional
explanations/clarification were added to the problems' definition section;

–
A section on proportionality was added;

–
All calculations and estimations related to
administrative burden in the baseline scenario and in the preferred option have
been entirely reviewed and revised, and the relation between the costs of
notifications and the overall fragmentation costs has been clarified (including
Annex 10);

–
Impacts on micro, small and medium enterprises,
particularly of data protection officers and data protection impact assessments
have been better specified.

The impact assessment report and an executive
summary are published with the proposals.

3.
LEGAL ELEMENTS OF THE PROPOSAL
3.1.
Legal Basis

This proposal is based on Article 16 TFEU,
which is the new legal basis for the adoption of data protection rules
introduced by the Lisbon Treaty. This provision allows the adoption of rules
relating to the protection of individuals with regard to the processing of
personal data by Member States when carrying out activities which fall within
the scope of Union law. It also allows the adoption of rules relating to the free
movement of personal data, including personal data processed by Member States
or private parties.

A Regulation is considered to be the most
appropriate legal instrument to define the framework for the protection of
personal data in the Union. The direct applicability of a Regulation in
accordance with Article 288 TFEU will reduce legal fragmentation and provide greater
legal certainty by introducing a harmonised set of core rules, improving the
protection of fundamental rights of individuals and contributing to the
functioning of the Internal Market.

The reference to Article 114(1) TFEU is only
necessary for amending Directive 2002/58/EC to the extent that that Directive
also provides for the protection of the legitimate interests of subscribers who
are legal persons.

3.2.
Subsidiarity and proportionality

According to the principle of subsidiarity
(Article 5(3) TEU), action at Union level shall be taken only if and in so far
as the objectives envisaged cannot be achieved sufficiently by Member States,
but can rather, by reason of the scale or effects of the proposed action, be
better achieved by the Union. In the light of the problems outlined above, the
analysis of subsidiarity indicates the necessity of EU-level action on the
following grounds:

–
The right to the protection of personal data,
enshrined in Article 8 of the Charter of Fundamental Rights, requires the same
level of data protection throughout the Union. The absence of common EU rules
would create the risk of different levels of protection in the Member States
and create restrictions on cross-border flows of personal data between Member
States with different standards.

–
Personal data are transferred across national
boundaries, both internal and external borders, at rapidly increasing rates. In
addition, there are practical challenges to enforcing data protection
legislation and a need for co-operation between Member States and their
authorities, which needs to be organised at EU level to ensure unity of
application of Union law. The EU is also best placed to ensure effectively and
consistently the same level of protection for individuals when their personal
data are transferred to third countries.

–
Member States cannot alone reduce the problems
in the current situation, particularly those due to the fragmentation in
national legislations. Thus, there is a specific need to establish a harmonised
and coherent framework allowing for a smooth transfer of personal data across
borders within the EU while ensuring effective protection for all individuals
across the EU.

–
The proposed EU legislative actions will be more
effective than similar actions at the level of Member States because of the
nature and scale of the problems, which are not confined to the level of one or
several Member States.

The principle of proportionality requires
that any intervention is targeted and does not go beyond what is necessary to
achieve the objectives. This principle has guided the preparation of this
proposal from the identification and evaluation of alternative policy options
to the drafting of the legislative proposal.

3.3.
Summary of fundamental rights issues

The right to protection of personal data is
established by Article 8 of the Charter and Article 16 TFEU and in Article 8 of
the ECHR. As underlined by the Court of Justice of the EU[27], the right to the protection
of personal data is not an absolute right, but must be considered in relation
to its function in society[28].
Data protection is closely linked to respect for private and family life
protected by Article 7 of the Charter. This is reflected by Article 1(1) of
Directive 95/46/EC which provides that Member States shall protect fundamental
rights and freedoms of natural persons and in particular their right to privacy
with respect of the processing of personal data.

Other potentially affected fundamental
rights enshrined in the Charter are the following: freedom of expression
(Article 11 of the Charter); freedom to conduct a business (Article 16); the right
to property and in particular the protection of intellectual property (Article
17(2)); the prohibition of any discrimination amongst others on grounds such as
race, ethnic origin, genetic features, religion or belief, political opinion or
any other opinion, disability or sexual orientation (Article 21); the rights of
the child (Article 24); the right to a high level of human health care (Article
35); the right of access to documents (Article 42); the right to an effective
remedy and a fair trial (Article 47).

3.4.
Detailed explanation of the proposal
3.4.1.
CHAPTER I - GENERAL PROVISIONS

Article 1 defines subject matter of the
Regulation, and, as in Article 1 of Directive 95/46/EC, sets out the two objectives
of the Regulation.

Article 2 determines the material scope of
the Regulation.

Article 3 determines the territorial scope
of the Regulation.

Article 4 contains definitions of terms
used in the Regulation. While some definitions are taken over from Directive
95/46/EC, others are modified, complemented with additional elements, or newly
introduced (‘personal data breach’ based on Article 2(h) of the e-privacy Directive
2002/58/EC[29]
as amended by Directive 2009/136/EC[30],
‘genetic data’, ‘biometric data’, ‘data concerning health’, ‘main establishment’,
‘representative’, ‘enterprise’, ‘group of undertakings’, ‘binding corporate
rules’, and of a ‘child’ which is based on the United Nation’s Convention on
the Rights of the Child[31],
and 'supervisory authority').

In the definition
of consent, the criterion
'explicit' is added to avoid confusing parallelism with 'unambiguous' consent
and in order to have one single and consistent definition of consent, ensuring
the awareness of the data subject that, and to what, he or she gives consent.

3.4.2.
CHAPTER II - PRINCIPLES

Article 5 sets out the principles relating
to personal data processing, which correspond to those in Article 6 of
Directive 95/46/EC. Additional new elements are in particular the transparency
principle, the clarification of the data minimisation principle and the establishment
of a comprehensive responsibility and liability of the controller.

Article 6 sets out, based on Article 7 of
Directive 95/46/EC, the criteria for lawful processing, which are further
specified as regards the balance of interest criterion, and the compliance with
legal obligations and public interest.

Article 7 clarifies the conditions for
consent to be valid as a legal ground for lawful processing.

Article 8 sets out further conditions for
the lawfulness of the processing of personal data of children in relation to information
society services offered directly to them.

Article 9 sets out the general prohibition
for processing special categories of personal data and the exceptions from this
general rule, building on Article 8 of the Directive 95/46/EC.

Article 10 clarifies that the controller is
not obliged to acquire additional information in order to identify the data
subject for the sole purpose of complying with any provision of this
Regulation.

Article 11 introduces the obligation on
controllers to provide transparent and easily accessible and understandable
information, inspired in particular by the Madrid Resolution on international standards
on the protection of personal data and privacy[32].

Article 12 obliges the controller to provide
procedures and mechanism for exercising the data subject's rights, including
means for electronic requests, requiring response to the data subject's request
within a defined deadline, and the motivation of refusals.

Article 13 provides rights in relation to
recipients, based on Article 12(c) of Directive 95/46/EC, extended to all
recipients, including joint controllers and processors.

3.4.3.2.
Section 2 – Information and access to data

Article 14 further specifies the
controller's information obligations towards the data subject, building on
Articles 10 and 11 of Directive 95/46/EC, providing additional information to the
data subject, including on the storage period, the right to lodge a complaint,
in relation to international transfers and to the source from which the data
are originating. It also maintains the possible derogations in Directive
95/46/EC, e.g. there will be no such obligation if the recording or disclosure
are expressly provided by law. This could apply for example in proceedings by
competition authorities, tax or customs administrations, or services competent
for social security matters.

Article 15 provides the data subject's
right of access to their personal data, building on Article 12(a) of Directive
95/46/EC and adding new elements, such as to inform the data subjects of the
storage period, and of the rights to rectification and to erasure and to lodge
a complaint.

3.4.3.3.
Section 3 – Rectification and erasure

Article 16 sets out the data subject's
right to rectification, based on Article 12(b) of Directive 95/46/EC.

Article 17 provides the data subject's
right to be forgotten and to erasure. It further elaborates and specifies the
right of erasure provided for in Article 12(b) of Directive 95/46/EC and provides
the conditions of the right to be forgotten, including the obligation of the
controller which has made the personal data public to inform third parties on
the data subject's request to erase any links to, or copy or replication of
that personal data. It also integrates the right to have the processing
restricted in certain cases, avoiding the ambiguous terminology “blocking”.

Article 18 introduces the data subject's
right to data portability, i.e. to transfer data from one electronic processing
system to and into another, without being prevented from doing so by the
controller. As a precondition and in order to further improve access of
individuals to their personal data, it provides the right to obtain from the
controller those data in a structured and commonly used electronic format.

3.4.3.4.
Section 4 – Right to object and profiling

Article 19 provides for the data subject's
rights to object. It is based on Article 14 of Directive 95/46/EC, with some
modifications, including as regards the burden of proof and its application to
direct marketing.

Article 20 concerns
the data subject's right not to be subject to a measure based on profiling. It builds
on, with modifications and additional safeguards, Article 15(1) of Directive
95/46 on automated individual decisions, and takes account of the Council of
Europe's recommendation on profiling[33].

3.4.3.5.
Section 5 – Restrictions

Article 21
clarifies the empowerment for the Union or Member States to maintain or
introduce restrictions of principles laid down in Article 5 and of the data
subject's rights laid down in Articles 11 to 20 and in Article 32. This
provision is based on Article 13 of Directive 95/46/EC and on the requirements
stemming from the Charter of Fundamental Rights and the European Convention for
the Protection of Human Rights and Fundamental Freedoms, as interpreted by the
Court of Justice of the EU and the European Court of Human Rights.

Article 22 takes account of the debate on a
"principle of accountability" and describes in detail the obligation
of responsibility of the controller to comply with this Regulation and to
demonstrate this compliance, including by way of adoption of internal policies
and mechanisms for ensuring such compliance.

Article 23 sets out the obligations of the
controller arising from the principles of data protection by design and by
default.

Article 24 on joint controllers clarifies
the responsibilities of joint controllers as regards their internal
relationship and towards the data subject.

Article 25 obliges under certain conditions
controllers not established in the Union, where the Regulation applies to their
processing activities, to designate a representative in the Union.

Article 26 clarifies the position and
obligation of processors, partly based on Article 17(2) of Directive 95/46/EC,
and adding new elements, including that a processor who processes data beyond
the controller's instructions is to be considered as a joint controller.

Article 27 on the processing under the
authority of the controller and processor is based on Article 16 of Directive
95/46/EC.

Article 28 introduces the obligation for
controllers and processors to maintain documentation of the processing
operations under their responsibility, instead of a general notification to the
supervisory authority required by Articles 18(1) and 19 of Directive 95/46/EC.

Article 29 clarifies the obligations of the
controller and the processor for the co-operation with the supervisory
authority.

3.4.4.2.
Section 2 – Data security

Article 30 obliges the controller and the
processor to implement appropriate measures for the security of processing, based
on Article 17(1) of Directive 95/46/EC, extending that obligation to
processors, irrespective of the contract with the controller.

Articles 31 and 32 introduce an obligation
to notify personal data breaches, building on the personal data breach
notification in Article 4(3) of the e-privacy Directive 2002/58/EC.

Article 33 introduces the obligation of
controllers and processors to carry out a data protection impact assessment
prior to risky processing operations.

Article 34 concerns the cases where authorisation
by, and consultation of, the supervisory authority is mandatory prior to the
processing, building on the concept of prior checking in Article 20 of
Directive 95/46/EC.

3.4.4.4.
Section 4 – Data protection officer

Article 35 introduces a mandatory data
protection officer for the public sector, and, in the private sector, for large
enterprises or where the core activities of the controller or processor consist
of processing operations which require regular and systematic monitoring. This
builds on Article 18(2) of Directive 95/46/EC which provided the possibility
for Member States to introduce such requirement as a surrogate of a general
notification requirement.

Article 36 sets out the position of the
data protection officer.

Article 37 provides the core tasks of the
data protection officer.

3.4.4.5.
Section 5 – Codes of conduct and certification

Article 38 concerns codes of conduct, building
on the concept of Article 27(1) of Directive 95/46/EC, clarifying the content
of the codes and the procedures and providing for the empowerment of the
Commission to decide on the general validity of codes of conduct.

3.4.5.
CHAPTER V - TRANSFER OF PERSONAL DATA TO THIRD
COUNTRIES OR INTERNATIONAL ORGANISATIONS

Article 40 spells out, as a general
principle, that the compliance with the obligations in that chapter are
mandatory for any transfers of personal data to third countries or
international organisations, including onward transfers.

Article 41 sets out the criteria,
conditions and procedures for the adoption of an adequacy decision by the
Commission, based on Article 25 of Directive 95/46/EC. The criteria which shall
be taken into account for the Commission’s assessment of an adequate or not
adequate level of protection include expressly the rule of law, judicial
redress and independent supervision. The article now confirms explicitly the possibility
for the Commission to assess the level of protection afforded by a territory or
a processing sector within a third country.

Article 42 requires for transfers to third
countries, where no adequacy decision has been adopted by the Commission, to
adduce appropriate safeguards, in particular standard data protection clauses, binding
corporate rules and contractual clauses. The possibility of making use of
Commission standard data protection clauses is based on Article 26(4) of
Directive 95/46/EC. As a new component, such standard data protection clauses
may now also be adopted by a supervisory authority and be declared generally
valid by the Commission. Binding corporate rules are now specifically mentioned
in the legal text. The option of contractual clauses gives certain flexibility
to the controller or processor, but is subject to prior authorisation by supervisory
authorities.

Article 43 describes in further detail the
conditions for transfers by way of binding corporate rules, based on the
current practices and requirements of supervisory authorities.

Article 44 spells out and clarifies the derogations
for a data transfer, based on the existing provisions of Article 26 of
Directive 95/46/EC. This applies in particular to data transfers required and
necessary for the protection of important grounds of public interest, for
example in cases of international data transfers between competition
authorities, tax or customs administrations, or between services competent for
social security matters or for fisheries management. In addition, a data
transfer may, under limited circumstances, be justified on a legitimate
interest of the controller or processor, but only after having assessed and
documented the circumstances of that transfer operation.

Article 45 explicitly provides for international
co-operation mechanisms for the protection of personal data between the
Commission and the supervisory authorities of third countries, in particular
those considered offering an adequate level of protection, taking into account the
Recommendation by the Organisation for Economic Co-operation and Development
(OECD) on cross-border co-operation in the enforcement of laws protecting privacy
of 12 June 2007.

Article 46 obliges Member States to
establish supervisory authorities, based on Article 28(1) of Directive 95/46/EC
and enlarging the mission of the supervisory authorities to co-operation with
each other and with the Commission.

Article 47 clarifies the conditions for the
independence of supervisory authorities, implementing case law by the Court of
Justice of the European Union[34],
inspired also by Article 44 of Regulation (EC) No 45/2001[35].

Article 48 provides general conditions for
the members of the supervisory authority, implementing the relevant case law[36] and inspired also by Article
42(2) to (6) of Regulation (EC) 45/2001.

Article 49 sets out rules on the establishment
of the supervisory authority to be provided by the Member States by law.

Article 50 lays down professional secrecy
of the members and staff of the supervisory authority and is based on Article
28(7) of Directive 95/46/EC.

3.4.6.2.
Section 2 – Duties and powers

Article 51 sets out the competence of the
supervisory authorities. The general rule, based on Article 28(6) of Directive
95/46/EC (competency on the territory of its own Member State), is complemented
by the new competence as lead authority in case that a controller or processor is
established in several Member States, to ensure unity of application ('one-stop
shop'). Courts, when acting in their judicial authority, are exempted from the
monitoring by the supervisory authority, but not from the application of the
substantive rules on data protection.

Article 52 provides the duties of the
supervisory authority, including hearing and investigating complaints and
promoting the awareness of the public of risks, rules, safeguards and rights.

Article 53 provides the powers of the
supervisory authority, in parts building on Article 28(3) of Directive 95/46/EC
and Article 47 of Regulation (EC) 45/2001, and adding some new elements,
including the power to sanction administrative offences.

Article 54 obliges the supervisory
authorities to draw up annual activity reports, based on Article 28(5) of
Directive 95/46/EC.

Article 55 introduces explicit rules on
mandatory mutual assistance, including consequences for non-compliance with the
request of another supervisory, building on Article 28(6), second subparagraph,
of Directive 95/46/EC.

Article 56 introduces rules on joint
operations, inspired by Article 17 of Council Decision 2008/615/JHA[37], including a right of
supervisory authorities to participate in such operations.

3.4.7.2.
Section 2 – Consistency

Article 57 introduces a consistency
mechanism for ensuring unity of application in relation to processing
operations which may concern data subjects in several Member States.

Article 58 sets out the procedures and
conditions for an opinion of the European Data Protection Board.

Article 59 concerns Commission opinions on
matters dealt within the consistency mechanism, which may either reinforce the
opinion of the European Data Protection Board or express a divergence with that
opinion, and the draft measure of the supervisory authority. Where the matter
has been raised by the European Data Protection Board under Article 58(3) it
can be expected that the Commission will exercise its discretion and deliver an
opinion whenever necessary.

Article 60 concerns Commission decisions requiring
the competent authority to suspend its draft measure when this is necessary to
ensure the correct application of this Regulation.

Article 61 provides for a possibility for
the adoption of provisional measures, in an urgency procedure.

Article 62 sets out the requirements for
Commission implementing acts under the consistency mechanism.

Article 63 provides
the obligation to enforce measures of a supervisory authority in all Member
States concerned, and sets out that the application of the consistency
mechanism is a precondition for the legal validity and enforcement of the
respective measure.

3.4.7.3.
Section 3 – European Data Protection Board

Article 64 establishes the European Data
Protection Board, consisting of the heads of the supervisory authority of each
Member State and of the European Data Protection Supervisor. The European Data
Protection Board replaces the Working Party on the Protection of Individuals
with regard to the Processing of Personal Data set up under Article 29 of
Directive 95/46/EC. It is clarified that the Commission is not a member of the
European Data Protection Board, but has the right to participate in the activities
and to be represented.

Article 65 underlines and clarifies the independence
of the European Data Protection Board.

Article 66 describes the tasks of the European
Data Protection Board, based on Article 30(1) of Directive 95/46/EC, and provides
for additional elements, reflecting the increased scope of activities of the
European Data Protection Board, within the Union and beyond. In order to be
able to react in urgent situations, it provides the Commission with the
possibility to ask for an opinion within a specific time-limit.

Article 67 requires the European Data
Protection Board to report annually on its activities, building on Article
30(6) of Directive 95/46/EC.

Article 68 sets out the European Data
Protection Board’s decision making procedures, including the obligation to
adopt rules of procedure which should extend also to operational arrangements.

Article 69 contains the provisions on the chair
and on the deputy chairs of the European Data Protection Board.

Article 70 sets out the tasks of the chair.

Article 71 sets out that the secretariat of
the European Data Protection Board shall be provided by the European Data
Protection Supervisor, and specifies the tasks of the secretariat.

Article 72 provides for rules on the
confidentiality.

3.4.8.
CHAPTER VIII - REMEDIES, LIABILITY AND SANCTIONS

Article 73 provides the right of any data
subject to lodge a complaint with a supervisory authority, based on Article
28(4) of Directive 95/46/EC. It specifies also the bodies, organisations or
associations which may lodge a complaint on behalf of the data subject or, in
case of a personal data breach, independently of a data subject's complaint.

Article 74 concerns the right of judicial
remedy against a supervisory authority. It builds on the general provision of
Article 28(3) of Directive 95/46/EC. It provides specifically a judicial remedy
obliging the supervisory authority to act on a complaint, and clarifies the
competence of the courts of the Member State where the supervisory authority is
established. It provides also the possibility that the supervisory authority of
the Member State in which the data subject is residing, may bring on behalf of
the data subject proceedings before the courts of another Member State where
the competent supervisory authority is established.

Article 75 concerns the right to a judicial
remedy against a controller or processor, building on Article
22 of Directive 95/46/EC, and providing a choice to go to court in the Member
State where the defendant is established or where the data subject is residing.
Where proceedings concerning the same matter are pending in the consistency
mechanism, the court may suspend its proceedings, except in case of urgency.

Article 76 lays down common rules for court
proceedings, including the rights of bodies, organisations or associations to
represent data subjects before the courts, the right of supervisory authorities
to engage in legal proceedings and the information of the courts on parallel
proceedings in another Member State, and the possibility for the courts to
suspend in such case the proceedings.[38]
There is an obligation on Member States to ensure rapid court actions.[39]

Article 77 sets out the right to
compensation and liability. It builds on Article 23 of
Directive 95/46/EC, extends this right to damages caused by processors and
clarifies the liability of joint controllers and joint processors.

Article 78 obliges Member States to lay
down rules on penalties, to sanction infringements of the Regulation, and to
ensure their implementation.

Article 79 obliges
each supervisory authority to sanction the administrative offences listed in
the catalogues set out in this provision, imposing fines up to maximum amounts,
with due regard to circumstances of each individual case.

Article 80 obliges Member States to adopt
exemptions and derogations from specific provisions of the Regulation where
necessary to reconcile the right to the protection of personal data with the
right of freedom of expression. It is based on Article 9 of Directive 95/46/EC,
as interpreted by the Court of Justice of the EU.[40]

Article 81 obliges Member States, further
to the conditions for special categories of data, to ensure specific safeguards
for processing for health purposes.

Article 82 provides an empowerment for
Member States to adopt specific laws for processing personal data in the
employment context.

Article 84 empowers Member States to adopt
specific rules on the access of supervisory authorities to personal data and to
premises, where controllers are subject to obligations of secrecy.

Article 85 allows in the light of Article
17 of the Treaty on the Functioning of the European Union for the continuous
application of existing comprehensive data protection rules of churches if
brought in line with this Regulation.

3.4.10.
CHAPTER X - DELEGATED ACTS AND IMPLEMENTING ACTS

Article 86 contains the standard provisions
for the exercise of the delegations in line with Article 290 TFEU. This allows
the legislator to delegate to the Commission the power to adopt non-legislative
acts of general application to supplement or amend certain non-essential elements
of a legislative act (quasi-legislative acts).

Article 87 contains
the provision for the Committee procedure needed for conferring implementing
powers on the Commission in the cases where in accordance with Article 291 TFEU
uniform conditions for implementing legally binding acts of the Union are
needed. The examination procedure
applies.

Article 90 obliges the Commission to
evaluate the Regulation and submit related reports.

Article 91 sets out the date of the entry
into force of the Regulation and a transitional phase as regards the date of
its application.

4. BUDGETARY IMPLICATION

The specific budgetary implications of the
proposal relate to the tasks allocated to the European Data Protection
Supervisor as specified in the legislative financial statements accompanying
this proposal. These implications require reprogramming of Heading 5 of the
Financial Perspective.

The proposal has no implications on
operational expenditure.

The legislative financial statement
accompanying this proposal for a Regulation covers the budgetary impacts for
the Regulation itself and for the Directive on police and justice data
protection.

2012/0011 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

on the protection of individuals with
regard to the processing of personal data and on the free movement of such data
(General Data Protection Regulation)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 16(2) and Article
114(1) thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[41],

After consulting the European Data
Protection Supervisor[42],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)
The protection of natural persons in relation to
the processing of personal data is a fundamental right. Article 8(1) of the
Charter of Fundamental Rights of the European Union and Article 16(1) of the
Treaty lay down that everyone has the right to the protection of personal data
concerning him or her.

(2)
The processing of personal data is designed to
serve man; the principles and rules on the protection of individuals with
regard to the processing of their personal data should, whatever the
nationality or residence of natural persons, respect their fundamental rights
and freedoms, notably their right to the protection of personal data. It should
contribute to the accomplishment of an area of freedom, security and justice
and of an economic union, to economic and social progress, the strengthening
and the convergence of the economies within the internal market, and the
well-being of individuals.

(3)
Directive 95/46/EC of the European Parliament
and of the Council of 24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free movement of such data[43] seeks to harmonise the protection
of fundamental rights and freedoms of natural persons in respect of processing
activities and to guarantee the free flow of personal data between Member
States.

(4)
The economic and social integration resulting
from the functioning of the internal market has led to a substantial increase
in cross-border flows. The exchange of data between economic and social, public
and private actors across the Union increased. National authorities in the
Member States are being called upon by Union law to co-operate and exchange
personal data so as to be able to perform their duties or carry out tasks on
behalf of an authority in another Member State.

(5)
Rapid technological developments and
globalisation have brought new challenges for the protection of personal data.
The scale of data sharing and collecting has increased spectacularly.
Technology allows both private companies and public authorities to make use of
personal data on an unprecedented scale in order to pursue their activities.
Individuals increasingly make personal information available publicly and
globally. Technology has transformed both the economy and social life, and
requires to further facilitate the free flow of data within the Union and the
transfer to third countries and international organisations, while ensuring an
high level of the protection of personal data.

(6)
These developments require building a strong and
more coherent data protection framework in the Union, backed by strong
enforcement, given the importance to create the trust that will allow the
digital economy to develop across the internal market. Individuals should have control
of their own personal data and legal and practical certainty for individuals, economic
operators and public authorities should be reinforced.

(7)
The objectives and principles of Directive
95/46/EC remain sound, but it has not prevented fragmentation in the way data
protection is implemented across the Union, legal uncertainty and a widespread
public perception that there are significant risks for the protection of
individuals associated notably with online activity. Differences in the level
of protection of the rights and freedoms of individuals, notably to the right
to the protection of personal data, with regard to the processing of personal
data afforded in the Member States may prevent the free flow of personal data
throughout the Union. These differences may therefore constitute an obstacle to
the pursuit of economic activities at the level of the Union, distort
competition and impede authorities in the discharge of their responsibilities
under Union law. This difference in levels of protection is due to the
existence of differences in the implementation and application of Directive
95/46/EC.

(8)
In order to ensure consistent and high level of protection
of individuals and to remove the obstacles to flows of personal data, the level
of protection of the rights and freedoms of individuals with regard to the
processing of such data should be equivalent in all Member States. Consistent
and homogenous application of the rules for the protection of the fundamental
rights and freedoms of natural persons with regard to the processing of
personal data should be ensured throughout the Union.

(9)
Effective protection of personal data throughout
the Union requires strengthening and detailing the rights of data subjects and
the obligations of those who process and determine the processing of personal
data, but also equivalent powers for monitoring and ensuring compliance with
the rules for the protection of personal data and equivalent sanctions for
offenders in the Member States.

(10)
Article 16(2) of the Treaty mandates the
European Parliament and the Council to lay down the rules relating to the
protection of individuals with regard to the processing of personal data and
the rules relating to the free movement of personal data.

(11)
In order to ensure a consistent level of protection
for individuals throughout the Union and to prevent divergences hampering the
free movement of data within the internal market, a Regulation is necessary to
provide legal certainty and transparency for economic operators, including micro,
small and medium-sized enterprises, and to provide individuals in all Member
States with the same level of legally enforceable rights and obligations and
responsibilities for controllers and processors, to ensure consistent
monitoring of the processing of personal data, and equivalent sanctions in all
Member States as well as effective co-operation by the supervisory authorities
of different Member States. To take account of the specific situation of micro,
small and medium-sized enterprises, this Regulation includes a number of
derogations. In addition, the Union institutions and bodies, Member States and their
supervisory authorities are encouraged to take account of the specific needs of
micro, small and medium-sized enterprises in the application of this Regulation.
The notion of micro, small and medium-sized enterprises should draw upon
Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition
of micro, small and medium-sized enterprises.

(12)
The protection afforded by this Regulation
concerns natural persons, whatever their nationality or place of residence, in
relation to the processing of personal data. With regard to the processing of
data which concern legal persons and in particular undertakings established as
legal persons, including the name and the form of the legal person and the
contact details of the legal person, the protection of this Regulation should
not be claimed by any person. This should also apply where the name of the
legal person contains the names of one or more natural persons.

(13)
The protection of individuals should be
technologically neutral and not depend on the techniques used; otherwise this
would create a serious risk of circumvention. The protection of individuals
should apply to processing of personal data by automated means as well as to
manual processing, if the data are contained or are intended to be contained in
a filing system. Files or sets of files as well as their cover pages, which are
not structured according to specific criteria, should not fall within the scope
of this Regulation.

(14)
This Regulation does not address issues of
protection of fundamental rights and freedoms or the free flow of data related
to activities which fall outside the scope of Union law, nor does it cover the
processing of personal data by the Union institutions, bodies, offices and
agencies, which are subject to Regulation (EC) No 45/2001[44], or the processing of personal
data by the Member States when carrying out activities in relation to the
common foreign and security policy of the Union.

(15)
This Regulation should not apply to processing
of personal data by a natural person, which are exclusively personal or
domestic, such as correspondence and the holding of addresses, and without any
gainful interest and thus without any connection with a professional or
commercial activity. The exemption should also not apply to controllers or
processors which provide the means for processing personal data for such
personal or domestic activities.

(16)
The protection of individuals with regard to the
processing of personal data by competent authorities for the purposes of
prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, and the free movement of such data, is subject
of a specific legal instrument at Union level. Therefore, this Regulation
should not apply to the processing activities for those purposes. However, data
processed by public authorities under this Regulation when used for the
purposes of prevention, investigation, detection or prosecution of criminal
offences or the execution of criminal penalties should be governed by the more
specific legal instrument at Union level (Directive XX/YYY).

(17)
This Regulation should be without prejudice to
the application of Directive 2000/31/EC, in particular of the liability rules
of intermediary service providers in Articles 12 to 15 of that Directive.

(18)
This Regulation allows the principle of public
access to official documents to be taken into account when applying the
provisions set out in this Regulation.

(19)
Any processing of personal data in the context
of the activities of an establishment of a controller or a processor in the Union
should be carried out in accordance with this Regulation, regardless of whether
the processing itself takes place within the Union or not. Establishment
implies the effective and real exercise of activity through stable
arrangements. The legal form of such arrangements, whether through a branch or
a subsidiary with a legal personality, is not the determining factor in this respect.

(20)
In order to ensure that individuals are not
deprived of the protection to which they are entitled under this Regulation, the
processing of personal data of data subjects residing in the Union by a
controller not established in the Union should be subject to this Regulation where
the processing activities are related to the offering of goods or services to
such data subjects, or to the monitoring of the behaviour of such data subjects.

(21)
In order to determine whether a processing
activity can be considered to ‘monitor the behaviour’ of data subjects, it
should be ascertained whether individuals are tracked on the internet with data
processing techniques which consist of applying a ‘profile’ to an individual,
particularly in order to take decisions concerning her or him or for analysing
or predicting her or his personal preferences, behaviours and attitudes.

(22)
Where the national law of a Member State applies
by virtue of public international law, this Regulation should also apply to a
controller not established in the Union, such as in a Member State's diplomatic
mission or consular post.

(23)
The principles of protection should apply to any
information concerning an identified or identifiable person. To determine
whether a person is identifiable, account should be taken of all the means
likely reasonably to be used either by the controller or by any other person to
identify the individual. The principles of data protection should not apply to
data rendered anonymous in such a way that the data subject is no longer
identifiable.

(24)
When using online services, individuals may be
associated with online identifiers provided by their devices, applications,
tools and protocols, such as Internet Protocol addresses or cookie identifiers.
This may leave traces which, combined with unique identifiers and other
information received by the servers, may be used to create profiles of the
individuals and identify them. It follows that identification numbers, location
data, online identifiers or other specific factors as such need not necessarily
be considered as personal data in all circumstances.

(25)
Consent should be given explicitly by any
appropriate method enabling a freely given specific and informed indication of
the data subject's wishes, either by a statement or by a clear affirmative
action by the data subject, ensuring that individuals are aware that they give
their consent to the processing of personal data, including by ticking a box
when visiting an Internet website or by any other
statement or conduct which clearly indicates in this context the data subject's
acceptance of the proposed processing of their personal data. Silence or
inactivity should therefore not constitute consent. Consent
should cover all processing activities carried out for the same purpose or
purposes. If the data subject's consent is to be given following an electronic
request, the request must be clear, concise and not unnecessarily disruptive to
the use of the service for which it is provided.

(26)
Personal data relating to health should include
in particular all data pertaining to the health status of a data subject;
information about the registration of the individual for the provision of
health services; information about payments or eligibility for healthcare with
respect to the individual; a number, symbol or particular assigned to an
individual to uniquely identify the individual for health purposes; any
information about the individual collected in the course of the provision of
health services to the individual; information derived from the testing or
examination of a body part or bodily substance, including biological samples;
identification of a person as provider of healthcare to the individual; or any
information on e.g. a disease, disability, disease risk, medical history,
clinical treatment, or the actual physiological or biomedical state of the data
subject independent of its source, such as e.g. from a physician or other
health professional, a hospital, a medical device, or an in vitro diagnostic
test.

(27)
The main establishment of a controller in the
Union should be determined according to objective criteria and should imply the
effective and real exercise of management activities determining the main
decisions as to the purposes, conditions and means of processing through stable
arrangements. This criterion should not depend whether the processing of
personal data is actually carried out at that location; the presence and use of
technical means and technologies for processing personal data or processing
activities do not, in themselves, constitute such main establishment and are
therefore no determining criteria for a main establishment. The main
establishment of the processor should be the place of its central
administration in the Union.

(28)
A group of undertakings should cover a
controlling undertaking and its controlled undertakings, whereby the
controlling undertaking should be the undertaking which can exercise a dominant
influence over the other undertakings by virtue, for example, of ownership,
financial participation or the rules which govern it or the power to have
personal data protection rules implemented.

(29)
Children deserve specific protection of their
personal data, as they may be less aware of risks, consequences, safeguards and
their rights in relation to the processing of personal data. To determine when
an individual is a child, this Regulation should take over the definition laid
down by the UN Convention on the Rights of the Child.

(30)
Any processing of personal data should be
lawful, fair and transparent in relation to the individuals concerned. In
particular, the specific purposes for which the data are processed should be
explicit and legitimate and determined at the time of the collection of the
data. The data should be adequate, relevant and limited to the minimum
necessary for the purposes for which the data are processed; this requires in
particular ensuring that the data collected are not excessive and that the
period for which the data are stored is limited to a strict minimum. Personal
data should only be processed if the purpose of the processing could not be
fulfilled by other means. Every reasonable step should be taken to ensure that
personal data which are inaccurate are rectified or deleted. In order to ensure
that the data are not kept longer than necessary, time limits should be
established by the controller for erasure or for a periodic review.

(31)
In order for processing to be lawful, personal
data should be processed on the basis of the consent of the person concerned or
some other legitimate basis, laid down by law, either in this Regulation or in
other Union or Member State law as referred to in this Regulation.

(32)
Where processing is based on the data subject's
consent, the controller should have the burden of proving that the data subject
has given the consent to the processing operation. In particular in the context
of a written declaration on another matter, safeguards should ensure that the
data subject is aware that and to what extent consent is given.

(33)
In order to ensure free consent, it should be
clarified that consent does not provide a valid legal ground where the
individual has no genuine and free choice and is subsequently not able to
refuse or withdraw consent without detriment.

(34)
Consent should not provide a valid legal ground
for the processing of personal data, where there is a clear imbalance between
the data subject and the controller. This is especially the case where the data
subject is in a situation of dependence from the controller, among others,
where personal data are processed by the employer of employees' personal data
in the employment context. Where the controller is a public authority, there
would be an imbalance only in the specific data processing operations where the
public authority can impose an obligation by virtue of its relevant public
powers and the consent cannot be deemed as freely given, taking into account
the interest of the data subject.

(35)
Processing should be lawful where it is
necessary in the context of a contract or the intended entering into a
contract.

(36)
Where processing is carried out in compliance
with a legal obligation to which the controller is subject or where processing
is necessary for the performance of a task carried out in the public interest
or in the exercise of an official authority, the processing should have a legal
basis in Union law, or in a Member State law which meets the requirements of
the Charter of Fundamental Rights of the European Union for any limitation of
the rights and freedoms. It is also for Union or national law to determine
whether the controller performing a task carried out in the public interest or
in the exercise of official authority should be a public administration or
another natural or legal person governed by public law, or by private law such
as a professional association.

(37)
The processing of personal data should equally
be regarded as lawful where it is necessary to protect an interest which is
essential for the data subject's life.

(38)
The legitimate interests of a controller may
provide a legal basis for processing, provided that the interests or the fundamental
rights and freedoms of the data subject are not overriding. This would need
careful assessment in particular where the data subject is a child, given that
children deserve specific protection. The data subject should have the right to
object the processing, on grounds relating to their particular situation and
free of charge. To ensure transparency, the controller should be obliged to explicitly
inform the data subject on the legitimate interests pursued and on the right to
object, and also be obliged to document these legitimate interests. Given that
it is for the legislator to provide by law the legal basis for public
authorities to process data, this legal ground should not apply for the
processing by public authorities in the performance of their tasks.

(39)
The processing of data to the extent strictly
necessary for the purposes of ensuring network and information security, i.e.
the ability of a network or an information system to resist, at a given level
of confidence, accidental events or unlawful or malicious actions that
compromise the availability, authenticity, integrity and confidentiality of
stored or transmitted data, and the security of the related services offered
by, or accessible via, these networks and systems, by public authorities, Computer
Emergency Response Teams – CERTs, Computer Security Incident Response Teams ­­–
CSIRTs, providers of electronic communications networks and services and by
providers of security technologies and services, constitutes a legitimate
interest of the concerned data controller. This could, for example, include
preventing unauthorised access to electronic communications networks and
malicious code distribution and stopping ‘denial of service’ attacks and damage
to computer and electronic communication systems.

(40)
The processing of personal data for other
purposes should be only allowed where the processing is compatible with those
purposes for which the data have been initially collected, in particular where
the processing is necessary for historical, statistical or scientific research purposes.
Where the other purpose is not compatible with the initial one for which the
data are collected, the controller should obtain the consent of the data
subject for this other purpose or should base the processing on another
legitimate ground for lawful processing, in particular where provided by Union
law or the law of the Member State to which the controller is subject. In any
case, the application of the principles set out by this Regulation and in
particular the information of the data subject on those other purposes should
be ensured.

(41)
Personal data which are, by their nature,
particularly sensitive and vulnerable in relation to fundamental rights or privacy,
deserve specific protection. Such data should not be processed, unless the data
subject gives his explicit consent. However, derogations from this prohibition should
be explicitly provided for in respect of specific needs, in particular where
the processing is carried out in the course of legitimate activities by certain
associations or foundations the purpose of which is to permit the exercise of
fundamental freedoms.

(42)
Derogating from the prohibition on processing
sensitive categories of data should also be allowed if done by a law, and
subject to suitable safeguards, so as to protect personal data and other fundamental
rights, where grounds of public interest so justify and in particular for
health purposes, including public health and social protection and the
management of health-care services, especially in order to ensure the quality
and cost-effectiveness of the procedures used for settling claims for benefits
and services in the health insurance system, or for historical, statistical and
scientific research purposes.

(43)
Moreover, the processing of personal data by
official authorities for achieving aims, laid down in constitutional law or
international public law, of officially recognised religious associations is
carried out on grounds of public interest.

(44)
Where in the course of electoral activities, the
operation of the democratic system requires in a Member State that political
parties compile data on people's political opinions, the processing of such
data may be permitted for reasons of public interest, provided that appropriate
safeguards are established.

(45)
If the data processed by a controller do not
permit the controller to identify a natural person, the data controller should
not be obliged to acquire additional information in order to identify the data
subject for the sole purpose of complying with any provision of this
Regulation. In case of a request for access, the controller should be entitled
to ask the data subject for further information to enable the data controller
to locate the personal data which that person seeks.

(46)
The principle of transparency requires that any
information addressed to the public or to the data subject should be easily
accessible and easy to understand, and that clear and plain language is used. This
is in particular relevant where in situations, such as online advertising, the
proliferation of actors and the technological complexity of practice makes it
difficult for the data subject to know and understand if personal data relating
to them are being collected, by whom and for what purpose. Given that children
deserve specific protection, any information and communication, where
processing is addressed specifically to a child, should be in such a clear and
plain language that the child can easily understand.

(47)
Modalities should be provided for facilitating
the data subject’s exercise of their rights provided by this Regulation,
including mechanisms to request, free of charge, in particular access to data,
rectification, erasure and to exercise the right to object. The controller
should be obliged to respond to requests of the data subject within a fixed
deadline and give reasons, in case he does not comply with the data subject's
request.

(48)
The principles of fair and transparent
processing require that the data subject should be informed in particular of
the existence of the processing operation and its purposes, how long the data will
be stored, on the existence of the right of access, rectification or erasure
and on the right to lodge a complaint. Where the data are collected from the
data subject, the data subject should also be informed whether they are obliged
to provide the data and of the consequences, in cases they do not provide such
data.

(49)
The information in relation to the processing of
personal data relating to the data subject should be given to them at the time
of collection, or, where the data are not collected from the data subject,
within a reasonable period, depending on the circumstances of the case. Where
data can be legitimately disclosed to another recipient, the data subject
should be informed when the data are first disclosed to the recipient.

(50)
However, it is not necessary to impose this
obligation where the data subject already disposes of this information, or
where the recording or disclosure of the data is expressly laid down by law, or
where the provision of information to the data subject proves impossible or
would involve disproportionate efforts. The latter could be particularly the
case where processing is for historical, statistical or scientific research purposes;
in this regard, the number of data subjects, the age of the data, and any
compensatory measures adopted may be taken into consideration.

(51)
Any person should have the right of access to
data which has been collected concerning them, and to exercise this right
easily, in order to be aware and verify the lawfulness of the processing. Every
data subject should therefore have the right to know and obtain communication
in particular for what purposes the data are processed, for what period, which
recipients receive the data, what is the logic of the data that are undergoing the
processing and what might be, at least when based on profiling, the
consequences of such processing. This right should not adversely affect the
rights and freedoms of others, including trade secrets or intellectual property
and in particular the copyright protecting the software. However, the result of
these considerations should not be that all information is refused to the data
subject.

(52)
The controller should use all reasonable
measures to verify the identity of a data subject that requests access, in
particular in the context of online services and online
identifiers. A controller should not retain personal data for the unique
purpose of being able to react to potential requests.

(53)
Any person should have the right to have
personal data concerning them rectified and a 'right to be forgotten' where the
retention of such data is not in compliance with this Regulation. In
particular, data subjects should have the right that their personal data are
erased and no longer processed, where the data are no longer necessary in
relation to the purposes for which the data are collected or otherwise
processed, where data subjects have withdrawn their consent for processing or
where they object to the processing of personal data concerning them or where
the processing of their personal data otherwise does not comply with this
Regulation. This right is particularly relevant, when the data subject has
given their consent as a child, when not being fully aware of the risks
involved by the processing, and later wants to remove such personal data especially
on the Internet. However, the further retention of the data should be allowed
where it is necessary for historical, statistical and scientific research purposes,
for reasons of public interest in the area of public health, for exercising the
right of freedom of expression, when required by law or where there is a reason
to restrict the processing of the data instead of erasing them.

(54)
To strengthen the 'right to be forgotten' in the
online environment, the right to erasure should also be extended in such a way that
a controller who has made the personal data public should be obliged to inform
third parties which are processing such data that a data subject requests them
to erase any links to, or copies or replications of that personal data. To
ensure this information, the controller should take all reasonable steps,
including technical measures, in relation to data for the publication of which
the controller is responsible. In relation to a third party publication of
personal data, the controller should be considered responsible for the
publication, where the controller has authorised the publication by the third
party.

(55)
To further strengthen the control over their own
data and their right of access, data subjects should have the right, where
personal data are processed by electronic means and in a structured and
commonly used format, to obtain a copy of the data concerning them also in
commonly used electronic format. The data subject should also be allowed to
transmit those data, which they have provided, from one automated application,
such as a social network, into another one. This should apply where the data
subject provided the data to the automated processing system, based on their consent
or in the performance of a contract.

(56)
In cases where personal data might lawfully be
processed to protect the vital interests of the data subject, or on grounds of
public interest, official authority or the legitimate interests of a
controller, any data subject should nevertheless be entitled to object to the
processing of any data relating to them. The burden of proof should be on the
controller to demonstrate that their legitimate interests may override the
interests or the fundamental rights and freedoms of the data subject.

(57)
Where personal data are processed for the
purposes of direct marketing, the data subject should have the right to object to
such processing free of charge and in a manner that can be easily and
effectively invoked..

(58)
Every natural person should have the right not
to be subject to a measure which is based on profiling by means of automated
processing. However, such measure should be allowed when expressly authorised
by law, carried out in the course of entering or performance of a contract, or
when the data subject has given his consent. In any case, such processing should
be subject to suitable safeguards, including specific information of the data
subject and the right to obtain human intervention and that such measure should
not concern a child.

(59)
Restrictions on specific principles and on the
rights of information, access, rectification and erasure or on the right to
data portability, the right to object, measures based on profiling, as well as
on the communication of a personal data breach to a data subject and on certain
related obligations of the controllers may be imposed by Union or Member State
law, as far as necessary and proportionate in a democratic society to safeguard
public security, including the protection of human life especially in response to
natural or man made disasters, the prevention, investigation and prosecution of
criminal offences or of breaches of ethics for regulated professions, other
public interests of the Union or of a Member State, in particular an important
economic or financial interest of the Union or of a Member State, or the
protection of the data subject or the rights and freedoms of others. Those
restrictions should be in compliance with requirements set out by the Charter
of Fundamental Rights of the European Union and by the European Convention for
the Protection of Human Rights and Fundamental Freedoms.

(60)
Comprehensive responsibility and liability of
the controller for any processing of personal data carried out by the
controller or on the controller's behalf should be established. In particular,
the controller should ensure and be obliged to demonstrate the compliance of
each processing operation with this Regulation.

(61)
The protection of the rights and freedoms of
data subjects with regard to the processing of personal data require that
appropriate technical and organisational measures are taken, both at the time
of the design of the processing and at the time of the processing itself, to
ensure that the requirements of this Regulation are met. In order to ensure and
demonstrate compliance with this Regulation, the controller should adopt
internal policies and implement appropriate measures, which meet in particular
the principles of data protection by design and data protection by default.

(62)
The protection of the rights and freedoms of
data subjects as well as the responsibility and liability of controllers and
processor, also in relation to the monitoring by and measures of supervisory
authorities, requires a clear attribution of the responsibilities under this
Regulation, including where a controller determines the purposes, conditions
and means of the processing jointly with other controllers or where a
processing operation is carried out on behalf of a controller.

(63)
Where a controller not established in the Union is
processing personal data of data subjects residing in the Union whose
processing activities are related to the offering of goods or services to such
data subjects, or to the monitoring their behaviour, the controller should
designate a representative, unless the controller is established in a third
country ensuring an adequate level of protection, or the controller is a small
or medium sized enterprise or a public authority or body or where the
controller is only occasionally offering goods or services to such data
subjects. The representative should act on behalf of the controller and may be
addressed by any supervisory authority.

(64)
In order to determine whether a controller is
only occasionally offering goods and services to data subjects residing in the
Union, it should be ascertained whether it is apparent from the controller's
overall activities that the offering of goods and services to such data
subjects is ancillary to those main activities.

(65)
In order to demonstrate compliance with this
Regulation, the controller or processor should document each processing
operation. Each controller and processor should be obliged to co-operate with
the supervisory authority and make this documentation, on request, available to
it, so that it might serve for monitoring those processing operations.

(66)
In order to maintain security and to prevent
processing in breach of this Regulation, the controller or processor should evaluate
the risks inherent to the processing and implement measures to mitigate those
risks. These measures should ensure an appropriate level of security, taking
into account the state of the art and the costs of their implementation in
relation to the risks and the nature of the personal data to be protected. When
establishing technical standards and organisational measures to ensure security
of processing, the Commission should promote technological neutrality,
interoperability and innovation, and, where appropriate, cooperate with third
countries.

(67)
A personal data breach may, if not addressed in
an adequate and timely manner, result in substantial economic loss and social
harm, including identity fraud, to the individual concerned. Therefore, as soon
as the controller becomes aware that such a breach has occurred, the controller
should notify the breach to the supervisory authority without undue delay and,
where feasible, within 24 hours. Where this cannot achieved within 24 hours, an
explanation of the reasons for the delay should accompany the notification. The
individuals whose personal data could be adversely affected by the breach
should be notified without undue delay in order to allow them to take the
necessary precautions. A breach should be considered as adversely affecting the
personal data or privacy of a data subject where it could result in, for example,
identity theft or fraud, physical harm, significant humiliation or damage to
reputation. The notification should describe the nature of the personal data
breach as well as recommendations as well as recommendations for the individual
concerned to mitigate potential adverse effects. Notifications to data subjects
should be made as soon as reasonably feasible, and in close cooperation with
the supervisory authority and respecting guidance provided by it or other
relevant authorities (e.g. law enforcement authorities). For example, the
chance for data subjects to mitigate an immediate risk of harm would call for a
prompt notification of data subjects whereas the need to implement appropriate
measures against continuing or similar data breaches may justify a longer
delay.

(68)
In order to determine whether a personal data
breach is notified to the supervisory authority and to the data subject without
undue delay, it should be ascertained whether the controller has implemented and
applied appropriate technological protection and organisational measures to establish
immediately whether a personal data breach has taken place and to inform
promptly the supervisory authority and the data subject, before a damage to
personal and economic interests occurs, taking into account in particular the
nature and gravity of the personal data breach and its consequences and adverse
effects for the data subject.

(69)
In setting detailed rules concerning the format
and procedures applicable to the notification of personal data breaches, due
consideration should be given to the circumstances of the breach, including
whether or not personal data had been protected by appropriate technical
protection measures, effectively limiting the likelihood of identity fraud or
other forms of misuse. Moreover, such rules and procedures should take into
account the legitimate interests of law enforcement authorities in cases where
early disclosure could unnecessarily hamper the investigation of the
circumstances of a breach.

(70)
Directive 95/46/EC provided for a general
obligation to notify processing of personal data to the supervisory
authorities. While this obligation produces administrative and financial burdens,
it did not in all cases contribute to improving the protection of personal data.
Therefore such indiscriminate general notification obligation should be
abolished, and replaced by effective procedures and mechanism which focus instead
on those processing operations which are likely to present specific risks to
the rights and freedoms of data subjects by virtue of their nature, their scope
or their purposes. In such cases, a data protection impact assessment should be
carried out by the controller or processor prior to the processing, which
should include in particular the envisaged measures, safeguards and mechanisms for
ensuring the protection of personal data and for demonstrating the compliance
with this Regulation.

(71)
This should in particular apply to newly
established large scale filing systems, which aim at processing a considerable
amount of personal data at regional, national or supranational level and which
could affect a large number of data subjects.

(72)
There are circumstances under which it may be
sensible and economic that the subject of a data protection impact assessment should
be broader than a single project, for example where public authorities or
bodies intend to establish a common application or processing platform or where
several controllers plan to introduce a common application or processing
environment across an industry sector or segment or for a widely used
horizontal activity.

(73)
Data protection impact assessments should be
carried out by a public authority or public body if such an assessment has not
already been made in the context of the adoption of the national law on which
the performance of the tasks of the public authority or public body is based
and which regulates the specific processing operation or set of operations in
question.

(74)
Where a data protection impact assessment
indicates that processing operations involve a high degree of specific risks to
the rights and freedoms of data subjects, such as excluding individuals from
their right, or by the use of specific new technologies, the supervisory
authority should be consulted, prior to the start of operations, on a risky
processing which might not be in compliance with this Regulation, and to make
proposals to remedy such situation. Such consultation should equally take place
in the course of the preparation either of a measure by the national parliament
or of a measure based on such legislative measure which defines the nature of
the processing and lays down appropriate safeguards.

(75)
Where the processing is carried out in the
public sector or where, in the private sector, processing is carried out by a
large enterprise, or where its core activities, regardless of the size of the
enterprise, involve processing operations which require regular and systematic
monitoring, a person should assist the controller or processor to monitor
internal compliance with this Regulation. Such data protection officers, whether
or not an employee of the controller, should be in a position to perform their
duties and tasks independently.

(76)
Associations or other bodies representing
categories of controllers should be encouraged to draw up codes of conduct,
within the limits of this Regulation, so as to facilitate the effective
application of this Regulation, taking account of the specific characteristics
of the processing carried out in certain sectors.

(77)
In order to enhance transparency and compliance
with this Regulation, the establishment of certification mechanisms, data
protection seals and marks should be encouraged, allowing data subjects to
quickly assess the level of data protection of relevant products and services.

(78)
Cross-border flows of personal data are
necessary for the expansion of international trade and international co-operation.
The increase in these flows has raised new challenges and concerns with respect
to the protection of personal data. However, when personal data are transferred
from the Union to third countries or to international organisations, the level
of protection of individuals guaranteed in the Union by this Regulation should not
be undermined. In any event, transfers to third countries may only be carried
out in full compliance with this Regulation.

(79)
This Regulation is without prejudice to international
agreements concluded between the Union and third countries regulating the
transfer of personal data including appropriate safeguards for the data
subjects.

(80)
The Commission may decide with effect for the
entire Union that certain third countries, or a territory or a processing
sector within a third country, or an international organisation, offer an
adequate level of data protection, thus providing legal certainty and
uniformity throughout the Union as regards the third countries or international
organisations which are considered to provide such level of protection. In
these cases, transfers of personal data to these countries may take place without
needing to obtain any further authorisation.

(81)
In line with the fundamental values on which the
Union is founded, in particular the protection of human rights, the Commission
should, in its assessment of the third country, take into account how a given third
country respects the rule of law, access to justice as well as international
human rights norms and standards.

(82)
The Commission may equally recognise that a
third country, or a territory or a processing sector within a third country, or
an international organisation offers no adequate level of data protection.
Consequently the transfer of personal data to that third country should be
prohibited. In that case, provision should be made for consultations between
the Commission and such third countries or international organisations.

(83)
In the absence of an adequacy decision, the
controller or processor should take measures to compensate for the lack of data
protection in a third country by way of appropriate safeguards for the data
subject. Such appropriate safeguards may consist of making use of binding
corporate rules, standard data protection clauses adopted by the Commission,
standard data protection clauses adopted by a supervisory authority or
contractual clauses authorised by a supervisory authority, or other suitable
and proportionate measures justified in the light of all the circumstances
surrounding a data transfer operation or set of data transfer operations and
where authorised by a supervisory authority.

(84)
The possibility for the controller or processor to
use standard data protection clauses adopted by the Commission or by a
supervisory authority should neither prevent the possibility for controllers or
processors to include the standard data protection clauses in a wider contract
nor to add other clauses as long as they do not contradict, directly or
indirectly, the standard contractual clauses adopted by the Commission or by a supervisory
authority or prejudice the fundamental rights or freedoms of the data subjects.

(85)
A corporate group should be able to make use of approved
binding corporate rules for its international transfers from the Union to
organisations within the same corporate group of undertakings, as long as such corporate rules include essential principles and
enforceable rights to ensure appropriate safeguards for
transfers or categories of transfers of personal data.

(86)
Provisions should be made for the possibility
for transfers in certain circumstances where the data subject has given his
consent, where the transfer is necessary in relation to a contract or a legal
claim, where important grounds of public interest laid down by Union or Member
State law so require or where the transfer is made from a register established
by law and intended for consultation by the public or persons having a
legitimate interest. In this latter case such a transfer should not involve the
entirety of the data or entire categories of the data contained in the register
and, when the register is intended for consultation by persons having a
legitimate interest, the transfer should be made only at the request of those
persons or if they are to be the recipients.

(87)
These derogations should in particular apply to
data transfers required and necessary for the protection of important grounds
of public interest, for example in cases of international data transfers
between competition authorities, tax or customs administrations, financial
supervisory authorities, between services competent for social security matters,
or to competent authorities for the prevention, investigation, detection and
prosecution of criminal offences.

(88)
Transfers which cannot be qualified as frequent
or massive, could also be possible for the purposes of the legitimate interests
pursued by the controller or the processor, when they have assessed all the
circumstances surrounding the data transfer. For the purposes of processing for
historical, statistical and scientific research purposes, the legitimate
expectations of society for an increase of knowledge should be taken into
consideration.

(89)
In any case, where the Commission has taken no
decision on the adequate level of data protection in a third country, the
controller or processor should make use of solutions that provide data subjects
with a guarantee that they will continue to benefit from the fundamental rights
and safeguards as regards processing of their data in the Union once this data
has been transferred.

(90)
Some third countries enact laws, regulations and
other legislative instruments which purport to directly regulate data
processing activities of natural and legal persons under the jurisdiction of
the Member States. The extraterritorial application of these laws, regulations
and other legislative instruments may be in breach of international law and may
impede the attainment of the protection of individuals guaranteed in the Union by
this Regulation. . Transfers should only be allowed where the conditions of
this Regulation for a transfer to third countries are met. This may inter alia
be the case where the disclosure is necessary for an important ground of public
interest recognised in Union law or in a Member State law to which the
controller is subject. The conditions under which an important ground of public
interest exists should be further specified by the Commission in a delegated
act.

(91)
When personal data moves across borders it may
put at increased risk the ability of individuals to exercise data protection
rights in particular to protect themselves from the unlawful use or disclosure
of that information. At the same time, supervisory authorities may find that
they are unable to pursue complaints or conduct investigations relating to the
activities outside their borders. Their efforts to work together in the
cross-border context may also be hampered by insufficient preventative or
remedial powers, inconsistent legal regimes, and practical obstacles like
resource constraints. Therefore, there is a need to promote closer co-operation
among data protection supervisory authorities to help them exchange information
and carry out investigations with their international counterparts.

(92)
The establishment of supervisory authorities in
Member States, exercising their functions with complete independence, is an
essential component of the protection of individuals with regard to the
processing of their personal data. Member States may establish more than one
supervisory authority, to reflect their constitutional, organisational and
administrative structure.

(93)
Where a Member State establishes several
supervisory authorities, it should establish by law mechanisms for ensuring the
effective participation of those supervisory authorities in the consistency
mechanism. That Member State should in particular designate the supervisory
authority which functions as a single contact point for the effective
participation of those authorities in the mechanism, to ensure swift and smooth
co-operation with other supervisory authorities, the European Data Protection
Board and the Commission.

(94)
Each supervisory authority should be provided
with the adequate financial and human resources, premises and infrastructure, which
is necessary for the effective performance of their tasks, including for the
tasks related to mutual assistance and co-operation with other supervisory
authorities throughout the Union.

(95)
The general conditions for the members of the
supervisory authority should be laid down by law in each Member State and should
in particular provide that those members should be either appointed by the
parliament or the government of the Member State, and include rules on the
personal qualification of the members and the position of those members.

(96)
The supervisory authorities should monitor the
application of the provisions pursuant to this Regulation and contribute to its
consistent application throughout the Union, in order to protect natural
persons in relation to the processing of their personal data and to facilitate
the free flow of personal data within the internal market. For that purpose,
the supervisory authorities should co-operate with each other and the
Commission.

(97)
Where the processing of personal data in the
context of the activities of an establishment of a controller or a processor in
the Union takes place in more than one Member State, one single supervisory
authority should be competent for monitoring the activities of the controller
or processor throughout the Union and taking the related decisions, in order to
increase the consistent application, provide legal certainty and reduce
administrative burden for such controllers and processors.

(98)
The competent authority, providing such one-stop
shop, should be the supervisory authority of the Member State in which the
controller or processor has its main establishment.

(99)
While this Regulation applies also to the
activities of national courts, the competence of the supervisory authorities
should not cover the processing of personal data when courts are acting in
their judicial capacity, in order to safeguard the independence of judges in
the performance of their judicial tasks. However, this exemption should be
strictly limited to genuine judicial activities in court cases and not apply to
other activities where judges might be involved in, in accordance with national
law.

(100)
In order to ensure consistent monitoring and
enforcement of this Regulation throughout the Union, the supervisory
authorities should have in each Member State the same duties and effective
powers, including powers of investigation, legally binding intervention, decisions
and sanctions, particularly in cases of complaints from individuals, and to
engage in legal proceedings. Investigative powers of supervisory authorities as
regards access to premises should be exercised in conformity with Union law and
national law. This concerns in particular the requirement to obtain a prior
judicial authorisation.

(101)
Each supervisory authority should hear complaints
lodged by any data subject and should investigate the matter. The investigation
following a complaint should be carried out, subject to judicial review, to the
extent that is appropriate in the specific case. The supervisory authority
should inform the data subject of the progress and the outcome of the complaint
within a reasonable period. If the case requires further investigation or
coordination with another supervisory authority, intermediate information
should be given to the data subject.

(102)
Awareness raising activities by supervisory
authorities addressed to the public should include specific measures directed
at controllers and processors, including micro, small
and medium-sized enterprises, as well as data subjects.

(103)
The supervisory authorities should assist each
other in performing their duties and provide mutual assistance, so as to ensure
the consistent application and enforcement of this Regulation in the internal
market.

(104)
Each supervisory authority should have the right
to participate in joint operations between supervisory authorities. The
requested supervisory authority should be obliged to respond to the request in
a defined time period.

(105)
In order to ensure the consistent application of
this Regulation throughout the Union, a consistency mechanism for co-operation
between the supervisory authorities themselves and the Commission should be
established. This mechanism should in particular apply where a supervisory
authority intends to take a measure as regards processing operations that are related
to the offering of goods or services to data subjects in several Member States,
, or to the monitoring such data subjects, or that might substantially affect the
free flow of personal data. It should also apply where any supervisory
authority or the Commission requests that the matter should be dealt with in
the consistency mechanism. This mechanism should be without prejudice to any
measures that the Commission may take in the exercise of its powers under the
Treaties.

(106)
In application of the consistency mechanism, the
European Data Protection Board should, within a determined period of time,
issue an opinion, if a simple majority of its members so decides or if so
requested by any supervisory authority or the Commission.

(107)
In order to ensure compliance with this
Regulation, the Commission may adopt an opinion on this matter, or a decision, requiring
the supervisory authority to suspend its draft measure.

(108)
There may be an urgent need to act in order to
protect the interests of data subjects, in particular when the danger exists
that the enforcement of a right of a data subject could be considerably
impeded. Therefore, a supervisory authority should be able to adopt provisional
measures with a specified period of validity when applying the consistency
mechanism.

(109)
The application of this mechanism should be a
condition for the legal validity and enforcement of the respective decision by
a supervisory authority. In other cases of cross-border relevance, mutual
assistance and joint investigations might be carried out between the concerned
supervisory authorities on a bilateral or multilateral basis without triggering
the consistency mechanism.

(110)
At Union level, a European Data Protection Board
should be set up. It should replace the Working Party on the Protection of Individuals
with Regard to the Processing of Personal Data established by Directive
95/46/EC. It should consist of a head of a supervisory authority of each Member
State and of the European Data Protection Supervisor. The Commission should
participate in its activities. The European Data Protection Board should
contribute to the consistent application of this Regulation throughout the
Union, including by advising the Commission and promoting co-operation of the
supervisory authorities throughout the Union. The European Data Protection
Board should act independently when exercising its tasks.

(111)
Every data subject should have the right to
lodge a complaint with a supervisory authority in any Member State and have the
right to a judicial remedy if they consider that their rights under this
Regulation are infringed or where the supervisory authority does not react on a
complaint or does not act where such action is necessary to protect the rights
of the data subject.

(112)
Any body, organisation or association which aims
to protects the rights and interests of data subjects in relation to the
protection of their data and is constituted according to the law of a Member
State should have the right to lodge a complaint with a supervisory authority or
exercise the right to a judicial remedy on behalf of data subjects, or to lodge,
independently of a data subject's complaint, an own complaint where it
considers that a personal data breach has occurred.

(113)
Each natural or legal person should have the
right to a judicial remedy against decisions of a supervisory authority
concerning them. Proceedings against a supervisory authority should be brought
before the courts of the Member State, where the supervisory authority is
established.

(114)
In order to strengthen the judicial protection
of the data subject in situations where the competent supervisory authority is
established in another Member State than the one where the data subject is
residing, the data subject may request any body, organisation or association aiming
to protect the rights and interests of data subjects in relation to the
protection of their data to bring on the data subject's behalf proceedings
against that supervisory authority to the competent court in the other Member
State.

(115)
In situations where the competent supervisory
authority established in another Member State does not act or has taken insufficient
measures in relation to a complaint, the data subject may request the
supervisory authority in the Member State of his or her habitual residence to bring
proceedings against that supervisory authority to the competent court in the
other Member State. The requested supervisory authority may decide, subject to
judicial review, whether it is appropriate to follow the request or not.

(116)
For proceedings against a controller or
processor, the plaintiff should have the choice to bring the action before the
courts of the Member States where the controller or processor has an
establishment or where the data subject resides, unless the controller is a
public authority acting in the exercise of its public powers.

(117)
Where there are indications that parallel
proceedings are pending before the courts in different Member States, the
courts should be obliged to contact each other. The courts should have the
possibility to suspend a case where a parallel case is pending in another
Member State. Member States should ensure that court actions, in order to be
effective, should allow the rapid adoption of measures to remedy or prevent an
infringement of this Regulation.

(118)
Any damage which a person may suffer as a result
of unlawful processing should be compensated by the controller or processor,
who may be exempted from liability if they prove that they are not responsible
for the damage, in particular where he establishes fault on the part of the data
subject or in case of force majeure.

(119)
Penalties should be imposed to any person,
whether governed by private or public law, who fails to comply with this
Regulation. Member States should ensure that the penalties should be effective,
proportionate and dissuasive and should take all measures to implement the
penalties.

(120)
In order to strengthen and harmonise administrative
sanctions against infringements of this Regulation, each supervisory authority should
have the power to sanction administrative offences. This Regulation should
indicate these offences and the upper limit for the related administrative
fines, which should be fixed in each individual case proportionate to the
specific situation, with due regard in particular to the nature, gravity and
duration of the breach. The consistency mechanism may also be used to cover divergences
in the application of administrative sanctions.

(121)
The processing of personal data solely for journalistic
purposes, or for the purposes of artistic or literary expression should qualify
for exemption from the requirements of certain provisions of this Regulation in
order to reconcile the right to the protection of personal data with the right
to freedom of expression, and notably the right to receive and impart
information, as guaranteed in particular by Article 11 of the Charter of
Fundamental Rights of the European Union. This should apply in particular to
processing of personal data in the audiovisual field and in news archives and
press libraries. Therefore, Member States should adopt legislative measures, which
should lay down exemptions and derogations which are necessary for the purpose
of balancing these fundamental rights. Such exemptions and derogations should
be adopted by the Member States on general principles, on the rights of the
data subject, on controller and processor, on the transfer of data to third
countries or international organisations, on the independent supervisory authorities
and on co-operation and consistency. This should not, however, lead Member
States to lay down exemptions from the other provisions of this Regulation. In
order to take account of the importance of the right to freedom of expression
in every democratic society, it is necessary to interpret notions relating to
that freedom, such as journalism, broadly. Therefore, Member States should
classify activities as "journalistic" for the purpose of the
exemptions and derogations to be laid down under this Regulation if the object
of these activities is the disclosure to the public of information, opinions or
ideas, irrespective of the medium which is used to transmit them. They should
not be limited to media undertakings and may be undertaken for profit-making or
for non-profit making purposes.

(122)
The processing of personal data concerning
health, as a special category of data which deserves higher protection, may
often be justified by a number of legitimate reasons for the benefit of
individuals and society as a whole, in particular in the context of ensuring
continuity of cross-border healthcare. Therefore this Regulation should provide
for harmonised conditions for the processing of personal data concerning health,
subject to specific and suitable safeguards so as to protect the fundamental
rights and the personal data of individuals. This includes the right for
individuals to have access to their personal data concerning their health, for
example the data in their medical records containing such information as
diagnosis, examination results, assessments by treating physicians and any
treatment or interventions provided.

(123)
The processing of personal data concerning
health may be necessary for reasons of public interest in the areas of public
health, without consent of the data subject. In that context, ‘public health’
should be interpreted as defined in Regulation (EC) No 1338/2008 of the
European Parliament and of the Council of 16 December 2008 on Community
statistics on public health and health and safety at work, meaning all elements
related to health, namely health status, including morbidity and disability,
the determinants having an effect on that health status, health care needs,
resources allocated to health care, the provision of, and universal access to,
health care as well as health care expenditure and financing, and the causes of
mortality. Such processing of personal data concerning health for reasons of
public interest should not result in personal data being processed for other
purposes by third parties such as employers, insurance and banking companies.

(124)
The general principles on the protection of
individuals with regard to the processing of personal data should also be applicable
to the employment context. Therefore, in order to regulate the processing of employees' personal data in the employment
context, Member States should be able, within the limits of this Regulation, to
adopt by law specific rules for the processing of personal data in the
employment sector.

(125)
The processing of personal data for the purposes
of historical, statistical or scientific research should, in order to be lawful,
also respect other relevant legislation such as on clinical trials.

(126)
Scientific research for the purposes of this
Regulation should include fundamental research, applied research, and privately
funded research and in addition should take into account the Union's objective under
Article 179(1) of the Treaty on the Functioning of the European Union of
achieving a European Research Area.

(127)
As regards the powers of the supervisory
authorities to obtain from the controller or processor access personal data and
access to its premises, Member States may adopt by law, within the limits of
this Regulation, specific rules in order to
safeguard the professional or other equivalent secrecy obligations, in so far
as necessary to reconcile the right to the protection of personal data with an
obligation of professional secrecy.

(128)
This Regulation respects and does not prejudice
the status under national law of churches and religious associations or
communities in the Member States, as recognised in Article 17 of the Treaty on
the Functioning of the European Union. As a consequence, where a church in a
Member State applies, at the time of entry into force of this Regulation,
comprehensive rules relating to the protection of individuals with regard to
the processing of personal data, these existing rules should continue to apply
if they are brought in line with this Regulation. Such churches and religious
associations should be required to provide for the establishment of a
completely independent supervisory authority.

(129)
In order to fulfil the objectives of this
Regulation, namely to protect the fundamental rights and freedoms of natural
persons and in particular their right to the protection of personal data and to
ensure the free movement of personal data within the Union, the power to adopt
acts in accordance with Article 290 of the Treaty on the Functioning of the
European Union should be delegated to the Commission. In particular, delegated
acts should be adopted in respect of lawfulness of processing; specifying the
criteria and conditions in relation to the consent of a child; processing of
special categories of data; specifying the criteria and conditions for
manifestly excessive requests and fees for exercising the rights of the data
subject; criteria and requirements for the information to the data subject and
in relation to the right of access; the right to be forgotten and to erasure; measures
based on profiling; criteria and requirements in relation to the responsibility
of the controller and to data protection by design and by default; a processor;
criteria and requirements for the documentation and the security of processing;
criteria and requirements for establishing a personal data breach and for its notification
to the supervisory authority, and on the circumstances where a personal data
breach is likely to adversely affect the data subject; the criteria and
conditions for processing operations requiring a data protection impact
assessment; the criteria and requirements for determining a high degree of specific
risks which require prior consultation; designation and tasks of the data
protection officer; codes of conduct; criteria and requirements for certification
mechanisms; criteria and requirements for transfers by way of binding corporate
rules; transfer derogations; administrative sanctions; processing for health
purposes; processing in the employment context and processing for historical,
statistical and scientific research purposes. It is of particular importance
that the Commission carry out appropriate consultations during its preparatory
work, including at expert level. The Commission, when preparing and drawing-up
delegated acts, should ensure a simultaneous, timely and appropriate
transmission of relevant documents to the European Parliament and Council.

(130)
In order to ensure uniform conditions for the
implementation of this Regulation, implementing powers should be conferred on
the Commission for: specifying standard forms in relation to the processing of personal
data of a child; standard procedures and forms for exercising the rights of
data subjects; standard forms for the information to the data subject; standard
forms and procedures in relation to the right of access; the right to data
portability; standard forms in relation to the responsibility of the controller
to data protection by design and by default and to the documentation; specific
requirements for the security of processing; the standard format and the
procedures for the notification of a personal data breach to the supervisory
authority and the communication of a personal data breach to the data subject; standards
and procedures for a data protection impact assessment; forms and procedures
for prior authorisation and prior consultation; technical standards and
mechanisms for certification; the adequate level of protection afforded by a
third country or a territory or a processing sector within that third country
or an international organisation; disclosures not authorized by Union law; mutual
assistance; joint operations; decisions under the consistency mechanism. Those
powers should be exercised in
accordance with Regulation (EU) No 182/2011 of the European Parliament and of
the Council of 16 February 2011 laying down the rules and general principles
concerning mechanisms for control by the Member States of the Commission's
exercise of implementing powers[45].
In this context, the Commission should consider specific measures for micro, small
and medium-sized enterprises.

(131)
The examination procedure should be used for the
adoption of specifying standard forms in relation to the consent of a child; standard
procedures and forms for exercising the rights of data subjects; standard forms
for the information to the data subject; standard forms and procedures in
relation to the right of access;, the right to data portability; standard forms
in relation to the responsibility of the controller to data protection by
design and by default and to the documentation; specific requirements for the
security of processing; the standard format and the procedures for the notification
of a personal data breach to the supervisory authority and the communication of
a personal data breach to the data subject; standards and procedures for a data
protection impact assessment; forms and procedures for prior authorisation and
prior consultation; technical standards and mechanisms for certification; the
adequate level of protection afforded by a third country or a territory or a
processing sector within that third country or an international organisation;
disclosures not authorized by Union law; mutual assistance; joint operations;
decisions under the consistency mechanism, given that those acts are of general
scope.

(132)
The Commission should adopt immediately
applicable implementing acts where, in duly justified cases relating to a third
country or a territory or a processing sector within that third country or an
international organisation which does not ensure an adequate level of
protection and relating to matters communicated by supervisory authorities
under the consistency mechanism, imperative grounds of urgency so require.

(133)
Since the objectives of this Regulation, namely
to ensure an equivalent level of protection of individuals and the free flow of
data throughout the Union, cannot be sufficiently achieved by the Member States
and can therefore, by reason of the scale or effects of the action, be better
achieved at Union level, the Union may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the Treaty on European
Union. In accordance with the principle of proportionality as set out in that
Article, this Regulation does not go beyond what is necessary in order to
achieve that objective.

(134)
Directive 95/46/EC should be repealed by this
Regulation. However, Commission decisions adopted and authorisations by
supervisory authorities based on Directive 95/46/EC should remain in force.

(135)
This Regulation should apply to all matters
concerning the protection of fundamental rights and freedom vis-à-vis the
processing of personal data, which are not subject to specific obligations with
the same objective set out in Directive 2002/58/EC, including the obligations
on the controller and the rights of individuals. In order to clarify the
relationship between this Regulation and Directive 2002/58/EC, the latter
Directive should be amended accordingly.

(136)
As regards Iceland and Norway, this Regulation constitutes
a development of provisions of the Schengen acquis to the extent that it
applies to the processing of personal data by authorities involved in the
implementation of that acquis, as provided for by the Agreement concluded by
the Council of the European Union and the Republic of Iceland and the Kingdom
of Norway concerning the association of those two States with the
implementation, application and development of the Schengen acquis[46].

(137)
As regards Switzerland, this Regulation constitutes
a development of provisions of the Schengen acquis to the extent that it
applies to the processing of personal data by authorities involved in the
implementation of that acquis, as provided for by the Agreement between the
European Union, the European Community and the Swiss Confederation concerning
the association of the Swiss Confederation with the implementation, application
and development of the Schengen acquis[47].

(138)
As regards Liechtenstein, this Regulation
constitutes a development of provisions of the Schengen acquis to the extent
that it applies to the processing of personal data by authorities involved in
the implementation of that acquis, as provided for by the Protocol between the
European Union, the European Community, the Swiss Confederation and the
Principality of Liechtenstein on the accession of the Principality of
Liechtenstein to the Agreement between the European Union, the European
Community and the Swiss Confederation on the Swiss Confederation’s association
with the implementation, application and development of the Schengen acquis[48].

(139)
In view of the fact that, as underlined by the
Court of Justice of the European Union, the right to the protection of personal
data is not an absolute right, but must be considered in relation to its
function in society and be balanced with other fundamental rights, in
accordance with the principle of proportionality, this Regulation respects all fundamental
rights and observes the principles recognised in the Charter of Fundamental
Rights of the European Union as enshrined in the Treaties, notably the right to
respect for private and family life, home and communications, the right to the
protection of personal data, the freedom of thought, conscience and religion, the
freedom of expression and information, the freedom to conduct a business, the
right to an effective remedy and to a fair trial as well as cultural, religious
and linguistic diversity.

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1
Subject matter and objectives

1. This Regulation lays down
rules relating to the protection of individuals with regard to the processing
of personal data and rules relating to the free movement of personal data.

2. This Regulation protects
the fundamental rights and freedoms of natural persons, and in particular their
right to the protection of personal data.

3. The free movement of
personal data within the Union shall neither be restricted nor prohibited for
reasons connected with the protection of individuals with regard to the
processing of personal data.

Article 2
Material scope

1. This Regulation applies to
the processing of personal data wholly or partly by automated means, and to the
processing other than by automated means of personal data which form part of a
filing system or are intended to form part of a filing system.

2. This Regulation does not
apply to the processing of personal data:

(a) in the course of an activity which
falls outside the scope of Union law, in particular concerning national
security;

(b) by the Union institutions, bodies,
offices and agencies;

(c) by the Member States when carrying out
activities which fall within the scope of Chapter 2 of the Treaty on European
Union;

(d) by a natural person without any
gainful interest in the course of its own exclusively personal or household
activity;

(e) by competent authorities for the
purposes of prevention, investigation, detection or prosecution of criminal
offences or the execution of criminal penalties.

3. This Regulation shall be
without prejudice to the application of Directive 2000/31/EC, in particular of
the liability rules of intermediary service providers in Articles 12 to 15 of
that Directive.

Article 3
Territorial scope

1. This Regulation applies to
the processing of personal data in the context of the activities of an
establishment of a controller or a processor in the Union.

2. This Regulation applies to
the processing of personal data of data subjects residing in the Union by a
controller not established in the Union, where the processing activities are
related to:

(a) the offering of goods or services to
such data subjects in the Union; or

(b) the monitoring of their behaviour.

3. This Regulation applies to
the processing of personal data by a controller not established in the Union,
but in a place where the national law of a Member State applies by virtue of
public international law.

Article 4
Definitions

For the purposes of this Regulation:

(1)
'data subject' means an identified natural person
or a natural person who can be identified, directly or indirectly, by means
reasonably likely to be used by the controller or by any other natural or legal
person, in particular by reference to an identification number, location data,
online identifier or to one or more factors specific to the physical,
physiological, genetic, mental, economic, cultural or social identity of that
person;

(2)
'personal data' means any information relating
to a data subject;

(3)
'processing' means any operation or set of operations
which is performed upon personal data or sets of personal data, whether or not
by automated means, such as collection, recording, organization, structuring, storage,
adaptation or alteration, retrieval, consultation, use, disclosure by
transmission, dissemination or otherwise making available, alignment or
combination, erasure or destruction;

(4)
'filing system' means any structured set of
personal data which are accessible according to specific criteria, whether
centralized, decentralized or dispersed on a functional or geographical basis;

(5)
'controller' means the natural or legal person, public authority, agency or any
other body which alone or jointly with others determines the purposes,
conditions and means of the processing of personal data; where the purposes,
conditions and means of processing are determined by Union law or Member State
law, the controller or the specific criteria for his nomination may be
designated by Union law or by Member State law;

(6)
'processor' means a natural or legal person, public authority, agency or any
other body which processes personal data on behalf of the controller;

(7)
'recipient' means a natural or legal person,
public authority, agency or any other body to which the personal data are
disclosed;

(8)
'the data subject's consent' means any freely
given specific, informed and explicit indication of his or her wishes by which
the data subject, either by a statement or by a clear affirmative action, signifies
agreement to personal data relating to them being processed;

(10)
'genetic data' means all data, of whatever type,
concerning the characteristics of an individual which are inherited or acquired
during early prenatal development;

(11)
'biometric data' means any data relating to the
physical, physiological or behavioural characteristics of an individual which
allow their unique identification, such as facial images, or dactyloscopic
data;

(12)
‘data concerning health’ means any information
which relates to the physical or mental health of an individual, or to the
provision of health services to the individual;

(13)
‘main establishment’ means as regards the
controller, the place of its establishment in the Union where the main
decisions as to the purposes, conditions and means of the processing of
personal data are taken; if no decisions as to the purposes, conditions and
means of the processing of personal data are taken in the Union, the main
establishment is the place where the main processing activities in the context
of the activities of an establishment of a controller in the Union take place.
As regards the processor, 'main establishment' means the place of its central
administration in the Union;

(14)
‘representative’ means any natural or legal
person established in the Union who, explicitly designated by the controller,
acts and may be addressed by any supervisory authority and other bodies in the
Union instead of the controller, with regard to the obligations of the
controller under this Regulation;

(15)
‘enterprise’ means any entity engaged in an
economic activity, irrespective of its legal form, thus including, in
particular, natural and legal persons, partnerships or associations regularly
engaged in an economic activity;

(16)
'group of undertakings' means a controlling
undertaking and its controlled undertakings;

(17)
‘binding corporate rules’ means personal data
protection policies which are adhered to by a controller or processor
established on the territory of a Member State of the Union for transfers or a
set of transfers of personal data to a controller or processor in one or more
third countries within a group of undertakings;

(18)
'child' means any person below the age of 18
years;

(19)
'supervisory authority' means a public authority
which is established by a Member State in accordance with Article 46.

CHAPTER II
PRINCIPLES

Article 5
Principles relating to personal data processing

Personal data must be:

(a) processed lawfully, fairly and in a
transparent manner in relation to the data subject;

(b) collected for specified, explicit and
legitimate purposes and not further processed in a way incompatible with those
purposes;

(c) adequate, relevant, and limited to the
minimum necessary in relation to the purposes for which they are processed; they
shall only be processed if, and as long as, the purposes could not be fulfilled
by processing information that does not involve personal data;

(d) accurate and kept up to date; every
reasonable step must be taken to ensure that personal data that are inaccurate,
having regard to the purposes for which they are processed, are erased or
rectified without delay;

(e) kept in a form which permits
identification of data subjects for no longer than is necessary for the
purposes for which the personal data are processed; personal data may be stored
for longer periods insofar as the data will be processed solely for historical,
statistical or scientific research purposes in accordance with the rules and
conditions of Article 83 and if a periodic review is carried out to assess the
necessity to continue the storage;

(f) processed under the responsibility
and liability of the controller, who shall ensure and demonstrate for each
processing operation the compliance with the provisions of this Regulation.

Article 6
Lawfulness of processing

1. Processing of personal data shall
be lawful only if and to the extent that at least one of the following applies:

(a) the data subject has given consent to
the processing of their personal data for one or more specific purposes;

(b) processing is necessary for the
performance of a contract to which the data subject is party or in order to
take steps at the request of the data subject prior to entering into a
contract;

(c) processing is necessary for compliance
with a legal obligation to which the controller is subject;

(d) processing is necessary in order to
protect the vital interests of the data subject;

(e) processing is necessary for the
performance of a task carried out in the public interest or in the exercise of
official authority vested in the controller;

(f) processing is necessary for the
purposes of the legitimate interests pursued by a controller, except where such
interests are overridden by the interests or fundamental rights and freedoms of
the data subject which require protection of personal data, in particular where
the data subject is a child. This shall not apply to processing carried out by
public authorities in the performance of their tasks.

2. Processing of personal
data which is necessary for the purposes of historical, statistical or
scientific research shall be lawful subject to the conditions and safeguards
referred to in Article 83.

3. The basis of the processing
referred to in points (c) and (e) of paragraph 1 must be provided for in:

(a) Union law, or

(b) the law of the Member State to which
the controller is subject.

The law of the Member State must meet an
objective of public interest or must be necessary to protect the rights and
freedoms of others, respect the essence of the right to the protection of
personal data and be proportionate to the legitimate aim pursued.

4. Where the purpose of
further processing is not compatible with the one for which the personal data
have been collected, the processing must have a legal basis at least in one of
the grounds referred to in points (a) to (e) of paragraph 1. This shall in
particular apply to any change of terms and general conditions of a contract.

5. The Commission shall be empowered to adopt delegated acts in accordance
with Article 86 for the purpose of further specifying the conditions
referred to in point (f) of paragraph 1 for various sectors and data processing
situations, including as regards the processing of personal data related to a
child.

Article 7
Conditions for consent

1. The controller shall bear
the burden of proof for the data subject's consent to the processing of their
personal data for specified purposes.

2. If the data subject's consent
is to be given in the context of a written declaration which also concerns another
matter, the requirement to give consent must be presented distinguishable in
its appearance from this other matter.

3. The data subject shall
have the right to withdraw his or her consent at any time. The withdrawal of
consent shall not affect the lawfulness of processing based on consent before
its withdrawal.

4. Consent shall not provide
a legal basis for the processing, where there is a significant imbalance
between the position of the data subject and the controller.

Article 8
Processing of personal data of a child

1. For the purposes of this
Regulation, in relation to the offering of information society services
directly to a child, the processing of personal data of a child below the age
of 13 years shall only be lawful if and to the extent that consent is given or
authorised by the child's parent or custodian. The controller shall make
reasonable efforts to obtain verifiable consent, taking into consideration
available technology.

2. Paragraph 1 shall not
affect the general contract law of Member States such as the rules on the
validity, formation or effect of a contract in relation to a child.

3. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria and requirements for the methods to obtain
verifiable consent referred to in paragraph 1. In doing so, the Commission
shall consider specific measures for micro, small and medium-sized enterprises.

4. The Commission may lay
down standard forms for specific methods to obtain verifiable consent referred
to in paragraph 1. Those implementing acts shall be adopted in accordance with
the examination procedure referred to in Article 87(2).

Article 9
Processing of special categories of personal data

1. The processing of personal
data, revealing race or ethnic origin, political opinions, religion or beliefs,
trade-union membership, and the processing of genetic data or data concerning
health or sex life or criminal convictions or related security measures shall
be prohibited.

2. Paragraph 1 shall not
apply where:

(a) the data
subject has given consent to the processing of those personal data, subject to
the conditions laid down in Articles 7 and 8, except where Union law or Member
State law provide that the prohibition referred to in paragraph 1 may not be
lifted by the data subject; or

(b) processing is necessary for the
purposes of carrying out the obligations and exercising specific rights of the
controller in the field of employment law in so far as it is authorised by Union law or Member State law providing for
adequate safeguards; or

(c) processing is necessary to protect the
vital interests of the data subject or of another
person where the data subject is physically or legally incapable of giving
consent; or

(d) processing is carried out in the
course of its legitimate activities with appropriate safeguards by a
foundation, association or any other non-profit-seeking body with a political,
philosophical, religious or trade-union aim and on condition that the
processing relates solely to the members or to former members of the body or to
persons who have regular contact with it in connection with its purposes and
that the data are not disclosed outside that body without the consent of the
data subjects; or

(e) the processing relates to personal data
which are manifestly made public by the data subject; or

(f) processing is necessary for the
establishment, exercise or defence of legal claims; or

(g) processing is necessary for the
performance of a task carried out in the public interest, on the basis of Union
law, or Member State law which shall provide for suitable measures to safeguard
the data subject's legitimate interests; or

(h) processing of data concerning health
is necessary for health purposes and subject to the conditions and safeguards
referred to in Article 81; or

(i) processing is necessary for
historical, statistical or scientific research purposes subject to the
conditions and safeguards referred to in Article 83; or

(j) processing of data relating to
criminal convictions or related security measures is carried out either under
the control of official authority or when the processing is necessary for
compliance with a legal or regulatory obligation to which a controller is
subject, or for the performance of a task carried out for important public
interest reasons, and in so far as authorised by Union
law or Member State law providing for adequate safeguards. A complete register
of criminal convictions shall be kept only under the control of official
authority.

3. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria, conditions and appropriate safeguards for
the processing of the special categories of personal data referred to in
paragraph 1 and the exemptions laid down in paragraph 2.

Article 10
Processing not allowing identification

If the data processed by a controller do
not permit the controller to identify a natural person, the controller shall
not be obliged to acquire additional information in order to identify the data
subject for the sole purpose of complying with any provision of this
Regulation.

CHAPTER III
RIGHTS
OF THE DATA SUBJECT

SECTION 1
TRANSPARENCY AND MODALITIES

Article 11
Transparent information and communication

1. The controller shall have
transparent and easily accessible policies with regard to the processing of
personal data and for the exercise of data subjects' rights.

2. The controller shall
provide any information and any communication relating to the processing of
personal data to the data subject in an intelligible form, using clear and
plain language, adapted to the data subject, in particular for any information addressed
specifically to a child.

Article 12
Procedures and mechanisms for exercising the rights of the data subject

1. The controller shall establish
procedures for providing the information referred to in Article 14 and for the exercise
of the rights of data subjects referred to in Article 13 and Articles 15 to 19.
The controller shall provide in particular mechanisms for facilitating the request
for the actions referred to in Article 13 and Articles 15 to 19. Where personal
data are processed by automated means, the controller shall also provide means
for requests to be made electronically.

2. The controller shall inform
the data subject without delay and, at
the latest within one month of receipt of the
request, whether or not any action has been taken pursuant to Article 13
and Articles 15 to 19 and shall provide the requested information. This period
may be prolonged for a further month, if several data subjects exercise their
rights and their cooperation is necessary to a reasonable extent to prevent an unnecessary
and disproportionate effort on the part of the controller. The information
shall be given in writing. Where the data subject makes the request in
electronic form, the information shall be provided in electronic form, unless
otherwise requested by the data subject.

3. If the controller refuses
to take action on the request of the data subject, the controller shall inform
the data subject of the reasons for the refusal and on the possibilities of lodging
a complaint to the supervisory authority and seeking a judicial remedy.

4. The information and the actions
taken on requests referred to in paragraph 1 shall be free of charge. Where requests
are manifestly excessive, in particular because of their repetitive character,
the controller may charge a fee for providing the information or taking the
action requested, or the controller may not take the action requested. In that case,
the controller shall bear the burden of proving the manifestly excessive
character of the request.

5. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria and conditions for the manifestly excessive
requests and the fees referred to in paragraph 4.

6. The Commission may lay
down standard forms and specifying standard procedures for the communication
referred to in paragraph 2, including the electronic format. In doing so, the
Commission shall take the appropriate measures for micro, small and medium-sized
enterprises. Those implementing acts shall be adopted in accordance with the
examination procedure referred to in Article 87(2).

Article 13
Rights in relation to recipients

The controller shall communicate any
rectification or erasure carried out in accordance with Articles 16 and 17 to
each recipient to whom the data have been disclosed, unless this proves
impossible or involves a disproportionate effort.

SECTION
2
INFORMATION AND ACCESS TO DATA

Article 14
Information to the data subject

1. Where personal data
relating to a data subject are collected, the controller shall provide the data
subject with at least the following information:

(a) the identity and the contact details
of the controller and, if any, of the controller's representative and of the
data protection officer;

(b) the purposes of the processing for
which the personal data are intended, including the contract terms and general
conditions where the processing is based on point (b) of Article 6(1) and the
legitimate interests pursued by the controller where the processing is based on
point (f) of Article 6(1);

(c) the period for which the personal data
will be stored;

(d) the existence of the right to request
from the controller access to and rectification or erasure of the personal data
concerning the data subject or to object to the processing of such personal data;

(e) the right to lodge a complaint to the
supervisory authority and the contact details of the supervisory authority;

(f) the recipients or categories of
recipients of the personal data;

(g) where applicable, that the controller
intends to transfer to a third country or international organisation and on the
level of protection afforded by that third country or international
organisation by reference to an adequacy decision by the Commission;

(h) any further information necessary to
guarantee fair processing in respect of the data subject, having regard to the
specific circumstances in which the personal data are collected.

2. Where the personal data
are collected from the data subject, the controller shall inform the data
subject, in addition to the information referred to in paragraph 1, whether the
provision of personal data is obligatory or voluntary, as well as the possible
consequences of failure to provide such data.

3. Where the personal data
are not collected from the data subject, the controller shall inform the data
subject, in addition to the information referred to in paragraph 1, from which
source the personal data originate.

4. The controller shall
provide the information referred to in paragraphs 1, 2 and 3:

(a) at the
time when the personal data are obtained from the data subject; or

(b) where the personal data are not collected
from the data subject, at the time of the recording or within a reasonable
period after the collection, having regard to the specific circumstances in
which the data are collected or otherwise processed, or, if a disclosure to
another recipient is envisaged, and at the latest when the data are first
disclosed.

5. Paragraphs 1 to 4 shall
not apply, where:

(a) the data subject has already the
information referred to in paragraphs 1, 2 and 3; or

(b) the data are not collected from the
data subject and the provision of such information proves impossible or would
involve a disproportionate effort; or

(c) the data are not collected from the
data subject and recording or disclosure is expressly laid down by law; or

(d) the data are not collected from the
data subject and the provision of such information will impair the rights and
freedoms of others, as defined in Union law or Member State law in accordance
with Article 21.

6. In the case referred to in
point (b) of paragraph 5, the controller shall provide appropriate measures to
protect the data subject's legitimate interests.

7. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria for categories of recipients referred
to in point (f) of paragraph 1, the requirements for the notice of potential
access referred to in point (g) of paragraph 1, the criteria for the further
information necessary referred to in point (h) of paragraph 1 for specific
sectors and situations, and the conditions and appropriate safeguards for the
exceptions laid down in point (b) of paragraph 5. In doing so, the Commission shall
take the appropriate measures for micro, small and medium-sized-enterprises.

8. The Commission may lay down
standard forms for providing the information referred to in paragraphs 1 to 3,
taking into account the specific characteristics and needs of various sectors
and data processing situations where necessary. Those implementing acts shall
be adopted in accordance with the examination procedure referred to in Article 87(2).

Article 15
Right of access for the data subject

1. The data subject shall have
the right to obtain from the controller at any time, on request, confirmation
as to whether or not personal data relating to the data subject are being
processed. Where such personal data are being processed, the controller shall
provide the following information:

(a) the purposes of the processing;

(b) the categories of personal data
concerned;

(c) the recipients or categories of
recipients to whom the personal data are to be or have been disclosed, in
particular to recipients in third countries;

(d) the period for which the personal data
will be stored;

(e) the existence of the right to request
from the controller rectification or erasure of personal data concerning the
data subject or to object to the processing of such personal data;

(f) the right to lodge a complaint to the
supervisory authority and the contact details of the supervisory authority;

(g) communication of the personal data
undergoing processing and of any available information as to their source;

(h) the significance and envisaged consequences of such
processing, at least in the case of measures referred to in Article 20.

2. The data subject shall
have the right to obtain from the controller communication of the personal data
undergoing processing. Where the data subject makes the request in electronic
form, the information shall be provided in electronic form, unless otherwise
requested by the data subject.

3. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria and requirements for the communication
to the data subject of the content of the personal data referred to in point
(g) of paragraph 1.

4. The Commission may specify
standard forms and procedures for requesting and granting access to the information
referred to in paragraph 1, including for verification of the identity of the data
subject and communicating the personal data to the data subject, taking into
account the specific features and necessities of various sectors and data
processing situations. Those implementing acts shall be adopted in accordance
with the examination procedure referred to in Article 87(2).

SECTION 3

RECTIFICATION AND ERASURE

Article 16
Right to rectification

The data subject shall have the right to
obtain from the controller the rectification of personal data relating to them which
are inaccurate. The data subject shall have the right to obtain completion of
incomplete personal data, including by way of supplementing a corrective
statement.

Article 17
Right to be forgotten and to erasure

1.
The data subject shall have the right to obtain
from the controller the erasure of personal data relating to them and the
abstention from further dissemination of such data, especially in relation to
personal data which are made available by the data subject while he or she was
a child, where one of the following grounds applies:

(a) the data are no longer necessary in
relation to the purposes for which they were collected or otherwise processed;

(b) the data subject withdraws consent on
which the processing is based according to point (a) of Article 6(1), or when
the storage period consented to has expired, and where there is no other legal
ground for the processing of the data;

(c) the data subject objects to the
processing of personal data pursuant to Article 19;

(d) the processing of the data does not
comply with this Regulation for other reasons.

2. Where the controller
referred to in paragraph 1 has made the personal data public, it shall take all reasonable steps, including technical
measures, in relation to data for the publication of
which the controller is responsible, to inform third
parties which are processing such data, that a data subject requests them to
erase any links to, or copy or replication of that personal data. Where the
controller has authorised a third party publication of personal data, the
controller shall be considered responsible for that
publication.

3. The controller shall carry
out the erasure without delay, except to the extent that the retention of the
personal data is necessary:

(a)
for exercising the right of freedom of
expression in accordance with Article 80;

(b)
for reasons of public interest in the area of
public health in accordance with Article 81;

(c)
for historical, statistical and scientific
research purposes in accordance with Article 83;

(d)
for compliance with a legal obligation to retain
the personal data by Union or Member State law to which the controller is
subject; Member State laws shall meet an objective of public interest, respect
the essence of the right to the protection of personal data and be proportionate
to the legitimate aim pursued;

(a) their accuracy is contested by the
data subject, for a period enabling the controller to verify the accuracy of
the data;

(b) the controller no longer needs the
personal data for the accomplishment of its task but they have to be maintained
for purposes of proof;

(c) the processing is unlawful and the
data subject opposes their erasure and requests the restriction of their use
instead;

(d) the data subject requests to transmit
the personal data into another automated processing system in accordance with
Article 18(2).

5. Personal data referred to
in paragraph 4 may, with the exception of storage, only be processed for
purposes of proof, or with the data subject's consent, or for the protection of
the rights of another natural or legal person or for an objective of public
interest.

6. Where processing of
personal data is restricted pursuant to paragraph 4, the controller shall
inform the data subject before lifting the restriction on processing.

7. The controller shall
implement mechanisms to ensure that the time limits established for the erasure
of personal data and/or for a periodic review of the need for the storage of
the data are observed.

8. Where the erasure is
carried out, the controller shall not otherwise process such personal data.

9. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying:

(a) the criteria and requirements for the
application of paragraph 1 for specific sectors and in specific data processing
situations;

(b) the conditions for deleting links, copies
or replications of personal data from publicly available communication services
as referred to in paragraph 2;

(c) the criteria and conditions for
restricting the processing of personal data referred to in paragraph 4.

Article 18
Right to data portability

1. The data subject shall
have the right, where personal data are processed by electronic means and in a
structured and commonly used format, to obtain from the controller a copy of
data undergoing processing in an electronic and structured format which is
commonly used and allows for further use by the data subject.

2. Where the data subject has
provided the personal data and the processing is based on consent or on a
contract, the data subject shall have the right to transmit those personal data
and any other information provided by the data subject and retained by an
automated processing system, into another one, in an electronic format which is
commonly used, without hindrance from the controller from whom the personal
data are withdrawn.

3. The Commission may specify
the electronic format referred to in paragraph 1 and the technical standards,
modalities and procedures for the transmission of personal data pursuant to
paragraph 2. Those implementing acts shall be adopted in accordance with the
examination procedure referred to in Article 87(2).

SECTION 4

RIGHT
TO OBJECT AND PROFILING

Article 19
Right to object

1. The data subject shall
have the right to object, on grounds relating to their particular situation, at
any time to the processing of personal data which is based on points (d), (e)
and (f) of Article 6(1), unless the controller demonstrates compelling
legitimate grounds for the processing which override the interests or
fundamental rights and freedoms of the data subject.

2. Where personal data are
processed for direct marketing purposes, the data subject shall have the right
to object free of charge to the processing of their personal data for such
marketing. This right shall be explicitly offered to the data subject in an
intelligible manner and shall be clearly distinguishable from other
information.

3. Where an objection is upheld
pursuant to paragraphs 1 and 2, the controller shall no longer use or otherwise
process the personal data concerned.

Article 20
Measures based on profiling

1. Every natural person shall
have the right not to be subject to a measure which produces legal effects
concerning this natural person or significantly affects this natural person,
and which is based solely on automated processing intended to evaluate certain
personal aspects relating to this natural person or to analyse or predict in
particular the natural person's performance at work, economic situation,
location, health, personal preferences, reliability or behaviour.

2.
Subject to the other provisions of this Regulation, a person may be subjected to a
measure of the kind referred to in paragraph 1 only if the processing:

(a) is carried out in the course of the
entering into, or performance of, a contract, where the request for the
entering into or the performance of the contract, lodged by the data subject,
has been satisfied or where suitable measures to safeguard the data subject's legitimate
interests have been adduced, such as the right to obtain human intervention; or

(b) is expressly authorized by a Union or
Member State law which also lays down suitable measures to safeguard the data
subject's legitimate interests; or

(c) is based on the data subject's
consent, subject to the conditions laid down in
Article 7 and to suitable safeguards.

3.
Automated processing of personal data intended
to evaluate certain personal aspects relating to a natural person shall not be
based solely on the special categories of personal data referred to in Article 9.

4. In the cases referred to
in paragraph 2, the information to be provided by the controller under Article 14
shall include information as to the existence of processing for a measure of
the kind referred to in paragraph 1 and the envisaged effects of such
processing on the data subject.

5. The
Commission shall be empowered to adopt delegated acts in accordance with
Article 86 for the purpose of further specifying the criteria and conditions
for suitable measures to safeguard the data subject's
legitimate interests referred to in paragraph 2.

SECTION 5
Restrictions

Article 21
Restrictions

1. Union or Member State law
may restrict by way of a legislative measure the scope of the obligations and
rights provided for in points (a) to (e) of Article 5 and Articles 11 to 20 and
Article 32, when such a restriction constitutes a necessary and proportionate
measure in a democratic society to safeguard:

(a) public security;

(b) the prevention, investigation,
detection and prosecution of criminal offences;

(c) other public
interests of the Union or of a Member State, in particular an important
economic or financial interest of the Union or of a Member State, including
monetary, budgetary and taxation matters and the protection of market stability
and integrity;

(d) the prevention, investigation,
detection and prosecution of breaches of ethics for regulated professions;

(e) a monitoring, inspection or regulatory
function connected, even occasionally, with the exercise of official authority
in cases referred to in (a), (b), (c) and (d);

(f) the protection of the data subject or
the rights and freedoms of others.

2. In particular, any
legislative measure referred to in paragraph 1 shall contain specific
provisions at least as to the objectives to be pursued by the processing and the
determination of the controller.

CHAPTER IV

CONTROLLER AND
PROCESSOR

SECTION
1
GENERAL OBLIGATIONS

Article 22
Responsibility of the controller

1. The controller shall adopt
policies and implement appropriate measures to ensure and be able to demonstrate
that the processing of personal data is performed in compliance with this
Regulation.

2. The measures provided for
in paragraph 1 shall in particular include:

(d)
complying with the requirements for prior
authorisation or prior consultation of the supervisory authority pursuant to
Article 34(1) and (2);

(e)
designating a data protection officer pursuant to
Article 35(1).

3. The controller shall implement mechanisms to ensure the verification
of the effectiveness of the measures referred to in paragraphs 1 and 2. If proportionate, this verification shall be carried
out by independent internal or external auditors.

4. The
Commission shall be empowered to adopt delegated acts in accordance with
Article 86 for the purpose of specifying any further criteria and requirements
for appropriate measures referred to in paragraph 1 other than those already referred
to in paragraph 2, the conditions for the verification and auditing mechanisms
referred to in paragraph 3 and as regards the criteria for proportionality
under paragraph 3, and considering specific measures for micro, small and medium-sized-enterprises.

Article 23
Data protection by design and by default

1. Having regard to the state of the art and the cost of
implementation, the controller shall, both at the time of the determination of
the means for processing and at the time of the processing itself, implement
appropriate technical and organisational measures and procedures in such a way
that the processing will meet the requirements of this Regulation and ensure
the protection of the rights of the data subject.

2. The controller shall
implement mechanisms for ensuring that, by default, only those personal data
are processed which are necessary for each specific purpose of the processing
and are especially not collected or retained beyond the minimum necessary for
those purposes, both in terms of the amount of the data and the time of their
storage. In particular, those mechanisms shall ensure that by default personal
data are not made accessible to an indefinite number of individuals.

3. The Commission shall be empowered to adopt delegated
acts in accordance with Article 86 for the purpose of specifying any further
criteria and requirements for appropriate measures and mechanisms referred to
in paragraph 1 and 2, in particular for data protection by design requirements applicable
across sectors, products and services.

4. The
Commission may lay down technical standards for the requirements laid down in
paragraph 1 and 2. Those implementing acts shall be adopted in accordance with
the examination procedure referred to in Article 87(2).

Article 24
Joint controllers

Where a controller determines the purposes,
conditions and means of the processing of personal data jointly with others,
the joint controllers shall determine their respective responsibilities for compliance
with the obligations under this Regulation, in particular as regards the
procedures and mechanisms for exercising the rights of the data subject, by
means of an arrangement between them.

Article 25
Representatives of controllers not established
in the Union

1. In the situation referred
to in Article 3(2), the controller shall designate a representative in the
Union.

2. This obligation shall not
apply to:

(a) a controller established in a third
country where the Commission has decided that the third country ensures an
adequate level of protection in accordance with Article 41; or

(b) an enterprise employing fewer than 250
persons; or

(c) a public authority or body; or

(d) a controller offering only
occasionally goods or services to data subjects residing in the Union.

3. The representative shall
be established in one of those Member States where the data subjects whose
personal data are processed in relation to the offering of goods or services to
them, or whose behaviour is monitored, reside.

4. The designation of a
representative by the controller shall be without
prejudice to legal actions which could be initiated against the controller itself.

Article 26
Processor

1. Where a processing
operation is to be carried out on behalf of a controller, the controller shall
choose a processor providing sufficient guarantees to implement appropriate
technical and organisational measures and procedures in such a way that the
processing will meet the requirements of this Regulation and ensure the
protection of the rights of the data subject, in particular in respect of the technical
security measures and organizational measures governing the processing to be
carried out and shall ensure compliance with those measures.

2. The carrying out of
processing by a processor shall be governed by a contract or other legal act
binding the processor to the controller and stipulating in particular that the
processor shall:

(a) act only on instructions from the
controller, in particular, where the transfer of the personal data used is
prohibited;

(b) employ only staff who have committed
themselves to confidentiality or are under a statutory obligation of
confidentiality;

(c) take all required measures pursuant to
Article 30;

(d) enlist another processor only with the
prior permission of the controller;

(e) insofar as this is possible given the
nature of the processing, create in agreement with the controller the necessary
technical and organisational requirements for the fulfilment of the
controller’s obligation to respond to requests for exercising the data
subject’s rights laid down in Chapter III;

(f) assist
the controller in ensuring compliance with the obligations pursuant to Articles
30 to 34;

(g) hand over all results to the
controller after the end of the processing and not process the personal data
otherwise;

(h) make available to the controller and
the supervisory authority all information necessary to control compliance with
the obligations laid down in this Article.

3. The controller and the
processor shall document in writing the controller's instructions and the
processor's obligations referred to in paragraph 2.

4. If a processor processes personal
data other than as instructed by the controller, the processor shall be
considered to be a controller in respect of that processing and shall be
subject to the rules on joint controllers laid down in Article 24.

5. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria and requirements for the responsibilities,
duties and tasks in relation to a processor in line with paragraph 1, and
conditions which allow facilitating the processing of personal data within a
group of undertakings, in particular for the purposes of control and reporting.

Article 27
Processing under the authority of the controller and processor

The processor and any person acting under
the authority of the controller or of the processor who has access to personal
data shall not process them except on instructions from the controller, unless
required to do so by Union or Member State law.

Article 28
Documentation

1. Each controller and
processor and, if any, the controller's representative, shall maintain
documentation of all processing operations under its responsibility.

2. The documentation shall
contain at least the following information:

(a) the name and contact details of the
controller, or any joint controller or processor, and of the representative, if
any;

(b) the name and contact details of the
data protection officer, if any;

(c) the purposes of the processing,
including the legitimate interests pursued by the controller where the
processing is based on point (f) of Article 6(1);

(d) a description of categories of data
subjects and of the categories of personal data relating to them;

(e) the recipients or categories of
recipients of the personal data, including the controllers to whom personal
data are disclosed for the legitimate interest pursued by them;

(f) where applicable, transfers of data
to a third country or an international organisation, including the
identification of that third country or international organisation and, in case
of transfers referred to in point (h) of Article 44(1), the documentation of
appropriate safeguards;

(g) a general indication of the time
limits for erasure of the different categories of data;

(h) the description of the mechanisms referred
to in Article 22(3).

3. The controller and the processor
and, if any, the controller's representative, shall make the documentation
available, on request, to the supervisory authority.

4. The obligations referred
to in paragraphs 1 and 2 shall not apply to the following controllers and
processors:

(a) a natural person processing personal
data without a commercial interest; or

(b) an enterprise or an organisation employing
fewer than 250 persons that is processing personal data only as an activity
ancillary to its main activities.

5. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria and requirements for the documentation referred
to in paragraph 1, to take account of in particular the responsibilities of the
controller and the processor and, if any, the controller's representative.

6. The Commission may lay
down standard forms for the documentation referred to in paragraph 1. Those
implementing acts shall be adopted in accordance with the examination procedure
referred to in Article 87(2).

Article 29
Co-operation with the supervisory authority

1. The
controller and the processor and, if any, the representative of the controller,
shall co-operate, on request, with the supervisory authority in the performance
of its duties, in particular by providing the information referred to in point
(a) of Article 53(2) and by granting access as provided in point (b) of that
paragraph.

2. In
response to the supervisory authority's exercise of its powers under Article 53(2),
the controller and the processor shall reply
to the supervisory authority within a reasonable period to be specified by the
supervisory authority. The reply shall include a description of the measures
taken and the results achieved, in response to the remarks of the supervisory
authority.

SECTION
2
data SECURITY

Article 30
Security of processing

1. The controller and the
processor shall implement appropriate technical and organisational measures to
ensure a level of security appropriate to the risks represented by the
processing and the nature of the personal data to be protected, having regard
to the state of the art and the costs of their implementation.

2. The controller and the
processor shall, following an evaluation of the risks, take the measures referred
to in paragraph 1 to protect personal data against accidental or unlawful
destruction or accidental loss and to prevent any unlawful forms of processing,
in particular any unauthorised disclosure, dissemination or access, or
alteration of personal data.

3. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria and conditions for the technical and
organisational measures referred to in paragraphs 1 and 2, including the
determinations of what constitutes the state of the art, for specific sectors
and in specific data processing situations, in particular taking account of
developments in technology and solutions for privacy by design and data
protection by default, unless paragraph 4 applies.

4. The Commission may adopt,
where necessary, implementing acts for specifying the requirements laid down in
paragraphs 1 and 2 to various situations, in particular to:

(c) ensure the verification of the
lawfulness of processing operations.

Those implementing acts shall be adopted in
accordance with the examination procedure referred to in Article 87(2).

Article 31
Notification of a personal data breach to the
supervisory authority

1. In the case of a personal
data breach, the controller shall without undue delay and, where feasible, not
later than 24 hours after having become aware of it, notify the personal data
breach to the supervisory authority. The notification to the supervisory
authority shall be accompanied by a reasoned justification in cases where it is
not made within 24 hours.

2. Pursuant to point (f) of Article
26(2), the processor shall alert and inform the controller immediately after
the establishment of a personal data breach.

3. The notification referred
to in paragraph 1 must at least:

(a) describe the nature of the personal
data breach including the categories and number of data subjects concerned and
the categories and number of data records concerned;

(b) communicate the identity and contact
details of the data protection officer or other contact point where more
information can be obtained;

(e) describe the measures proposed or
taken by the controller to address the personal data breach.

4. The controller shall
document any personal data breaches, comprising the facts surrounding the
breach, its effects and the remedial action taken. This documentation must
enable the supervisory authority to verify compliance with this Article. The documentation
shall only include the information necessary for that purpose.

5. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria and requirements for establishing the data
breach referred to in paragraphs 1 and 2 and for the particular circumstances
in which a controller and a processor is required to notify the personal data
breach.

6. The Commission may lay
down the standard format of such notification to the supervisory authority, the
procedures applicable to the notification requirement and the form and the
modalities for the documentation referred to in paragraph 4, including the time
limits for erasure of the information contained therein. Those implementing
acts shall be adopted in accordance with the examination procedure referred to
in Article 87(2).

Article 32
Communication of a personal data breach to
the data subject

1. When the personal data breach
is likely to adversely affect the protection of the personal data or privacy of
the data subject, the controller shall, after the notification referred to in
Article 31, communicate the personal data breach to the data subject without
undue delay.

2. The communication to the
data subject referred to in paragraph 1 shall describe the nature of the
personal data breach and contain at least the information and the
recommendations provided for in points (b) and (c) of Article 31(3).

3. The communication of a
personal data breach to the data subject shall not be required if the
controller demonstrates to the satisfaction of the supervisory authority that
it has implemented appropriate technological
protection measures, and that those measures were applied to the data concerned
by the personal data breach. Such technological
protection measures shall render the data unintelligible to any person who is
not authorised to access it.

4. Without prejudice to the
controller's obligation to communicate the personal data breach to the data
subject, if the controller has not already communicated the personal data
breach to the data subject of the personal data breach, the supervisory
authority, having considered the likely adverse effects of the breach, may
require it to do so.

5. The Commission shall be empowered to adopt delegated acts in accordance
with Article 86 for the purpose of further specifying the criteria and
requirements as to the circumstances in which a personal data breach is
likely to adversely affect the personal data referred to in paragraph 1.

6. The Commission may lay
down the format of the communication to the data subject referred to in
paragraph 1 and the procedures applicable to that communication. Those
implementing acts shall be adopted in accordance with the examination procedure
referred to in Article 87(2).

SECTION 3
DATA PROTECTION IMPACT ASSESSMENT
AND PRIOR AUTHORISATION

Article 33
Data protection impact assessment

1. Where processing
operations present specific risks to the rights and freedoms of data subjects
by virtue of their nature, their scope or their purposes, the controller or the
processor acting on the controller's behalf shall carry out an assessment of
the impact of the envisaged processing operations on the protection of personal
data.

2. The following processing
operations in particular present specific risks referred to in paragraph 1:

(a) a systematic and extensive evaluation
of personal aspects relating to a natural person or for analysing or predicting
in particular the natural person's economic situation, location, health,
personal preferences, reliability or behaviour, which is based on automated
processing and on which measures are based that produce legal effects
concerning the individual or significantly affect the individual;

(b) information on sex life, health, race
and ethnic origin or for the provision of health care, epidemiological
researches, or surveys of mental or infectious diseases, where the data are
processed for taking measures or decisions regarding specific individuals on a
large scale;

(c) monitoring publicly accessible areas,
especially when using optic-electronic devices (video surveillance) on a large
scale;

(e) other processing operations for which
the consultation of the supervisory authority is required pursuant to point (b)
of Article 34(2).

3. The assessment shall
contain at least a general description of the envisaged processing operations,
an assessment of the risks to the rights and freedoms of data subjects, the
measures envisaged to address the risks, safeguards, security measures and
mechanisms to ensure the protection of personal data and to demonstrate
compliance with this Regulation, taking into account the rights and legitimate
interests of data subjects and other persons concerned.

4. The controller shall seek
the views of data subjects or their representatives on the intended processing,
without prejudice to the protection of commercial
or public interests or the security of the processing operations.

5. Where the controller is a
public authority or body and where the processing results from a legal
obligation pursuant to point (c) of Article 6(1) providing for rules and
procedures pertaining to the processing operations and regulated by Union law,
paragraphs 1 to 4 shall not apply, unless Member States deem it necessary to
carry out such assessment prior to the processing activities.

6. The Commission shall be empowered to adopt delegated acts in accordance
with Article 86 for the purpose of further specifying the criteria and conditions
for the processing operations likely to present specific risks referred
to in paragraphs 1 and 2 and the requirements for the assessment referred to in
paragraph 3, including conditions for scalability, verification and
auditability. In doing so, the Commission shall consider specific measures for micro, small and medium-sized enterprises.

7. The Commission may specify
standards and procedures for carrying out and verifying and auditing the assessment
referred to in paragraph 3. Those implementing acts shall be adopted in
accordance with the examination procedure referred to in Article 87(2).

Article 34
Prior authorisation and prior consultation

1. The controller or the processor
as the case may be shall obtain an authorisation from the supervisory authority
prior to the processing of personal data, in
order to ensure the compliance of the intended processing with this Regulation
and in particular to mitigate the risks involved for the data subjects where
a controller or processor adopts contractual clauses as provided for in point
(d) of Article 42(2) or does not provide for the appropriate safeguards in a
legally binding instrument as referred to in Article 42(5) for the transfer of
personal data to a third country or an international organisation.

2. The controller or
processor acting on the controller's behalf shall consult the supervisory
authority prior to the processing of personal data in order to ensure the
compliance of the intended processing with this Regulation and in particular to
mitigate the risks involved for the data subjects where:

(a) a data protection impact assessment as
provided for in Article 33 indicates that processing operations are by virtue
of their nature, their scope or their purposes, likely to present a high degree
of specific risks; or

(b) the supervisory authority deems it
necessary to carry out a prior consultation on processing operations that are
likely to present specific risks to the rights and freedoms of data subjects by
virtue of their nature, their scope and/or their purposes, and specified
according to paragraph 4.

3. Where the supervisory
authority is of the opinion that the intended processing does not comply with this
Regulation, in particular where risks are insufficiently identified or
mitigated, it shall prohibit the intended processing and make appropriate
proposals to remedy such incompliance.

4. The supervisory authority
shall establish and make public a list of the processing operations which are
subject to prior consultation pursuant to point (b) of paragraph 2. The
supervisory authority shall communicate those lists to the European Data
Protection Board.

5. Where the list provided
for in paragraph 4 involves processing activities which are related to the
offering of goods or services to data subjects in several Member States, or to the
monitoring of their behaviour, or may substantially affect the free movement of
personal data within the Union, the supervisory authority shall apply the
consistency mechanism referred to in Article 57 prior to the adoption of the list.

6. The controller or
processor shall provide the supervisory authority with the data protection impact
assessment provided for in Article 33 and, on
request, with any other information to allow the supervisory authority to make an
assessment of the compliance of the processing and in particular of the risks
for the protection of personal data of the data subject and of the related
safeguards.

7. Member States shall consult
the supervisory authority in the preparation of a legislative measure to be adopted
by the national parliament or of a measure based on such a legislative measure,
which defines the nature of the processing, in order to ensure the compliance of the intended processing with this Regulation
and in particular to mitigate the risks involved for the data subjects.

8. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria and requirements for determining the high
degree of specific risk referred to in point (a) of paragraph 2.

9. The Commission may set out
standard forms and procedures for prior authorisations and consultations referred
to in paragraphs 1 and 2, and standard forms and procedures for informing the
supervisory authorities pursuant to paragraph 6. Those implementing acts shall
be adopted in accordance with the examination procedure referred to in Article 87(2).

SECTION
4
DATA PROTECTION OFFICER

Article 35
Designation of the data protection officer

1. The controller and the
processor shall designate a data protection officer in any case where:

(a) the processing is carried out by a
public authority or body; or

(b) the processing is carried out by an
enterprise employing 250 persons or more; or

(c) the core activities of the controller
or the processor consist of processing operations which, by virtue of their
nature, their scope and/or their purposes, require regular and systematic
monitoring of data subjects.

2. In the case referred to in
point (b) of paragraph 1, a group of undertakings may appoint a single data
protection officer.

3. Where the controller or
the processor is a public authority or body, the data protection officer may be
designated for several of its entities, taking account of the organisational
structure of the public authority or body.

4. In cases other than those
referred to in paragraph 1, the controller or processor or associations and
other bodies representing categories of controllers or processors may designate
a data protection officer.

5. The controller or
processor shall designate the data protection officer on the basis of
professional qualities and, in particular, expert knowledge of data protection
law and practices and ability to fulfil the tasks referred to in Article 37.
The necessary level of expert knowledge shall be determined in particular according
to the data processing carried out and the protection required for the personal
data processed by the controller or the processor.

6. The controller or the processor
shall ensure that any other professional duties of the data protection officer are
compatible with the person's tasks and duties as data protection officer and do
not result in a conflict of interests.

7. The controller or the processor
shall designate a data protection officer for a period of at least two years.
The data protection officer may be reappointed for further terms. During their
term of office, the data protection officer may only be dismissed, if the data
protection officer no longer fulfils the conditions required for the
performance of their duties.

8. The data protection
officer may be employed by the controller or processor, or fulfil his or her
tasks on the basis of a service contract.

9. The controller or the processor
shall communicate the name and contact details of the data protection officer to
the supervisory authority and to the public.

10. Data subjects shall have
the right to contact the data protection officer on all issues related to the
processing of the data subject’s data and to request exercising the rights
under this Regulation.

11. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria and requirements for the core activities of
the controller or the processor referred to in point (c) of paragraph 1 and the
criteria for the professional qualities of the data protection officer referred
to in paragraph 5.

Article 36
Position of the data protection officer

1. The controller or the
processor shall ensure that the data protection officer is properly and in a
timely manner involved in all issues which relate to the protection of personal
data.

2. The controller or
processor shall ensure that the data protection officer performs the duties and
tasks independently and does not receive any instructions as regards the
exercise of the function. The data protection officer shall directly report to the
management of the controller or the processor.

3. The controller or the processor
shall support the data protection officer in performing the tasks and shall
provide staff, premises, equipment and any other resources necessary to carry
out the duties and tasks referred to in Article 37.

Article 37
Tasks of the data protection officer

1. The controller or the processor
shall entrust the data protection officer at least with the following tasks:

(a) to inform and advise the controller or
the processor of their obligations pursuant to this Regulation and to document
this activity and the responses received;

(b) to monitor the implementation and
application of the policies of the controller or processor in relation to the
protection of personal data, including the assignment of responsibilities, the training
of staff involved in the processing operations, and the related audits;

(c) to monitor the implementation and
application of this Regulation, in particular as to the requirements related to
data protection by design, data protection by default and data security and to
the information of data subjects and their requests in exercising their rights
under this Regulation;

(d) to ensure that the documentation
referred to in Article 28 is maintained;

(e) to monitor the documentation,
notification and communication of personal data breaches pursuant to Articles 31
and 32;

(f) to monitor the performance of the data
protection impact assessment by the controller or processor and the application
for prior authorisation or prior consultation, if required pursuant Articles 33
and 34;

(g) to monitor the response to requests
from the supervisory authority, and, within the sphere of the data protection
officer's competence, co-operating with the supervisory authority at the
latter's request or on the data protection officer’s own initiative;

(h) to act as the contact point for the
supervisory authority on issues related to the processing and consult with the
supervisory authority, if appropriate, on his/her own initiative.

2. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying the criteria and requirements for tasks, certification,
status, powers and resources of the data protection officer referred to in
paragraph 1.

SECTION
5
CODES
OF CONDUCT AND CERTIFICATION

Article 38
Codes of conduct

1. The Member States, the supervisory
authorities and the Commission shall encourage the drawing up of codes of
conduct intended to contribute to the proper application
of this Regulation, taking account of the specific features of the various data
processing sectors, in particular in relation to:

(a) fair and
transparent data processing;

(b) the
collection of data;

(c) the
information of the public and of data subjects;

(d) requests of
data subjects in exercise of their rights;

(e) information
and protection of children;

(f) transfer of
data to third countries or international organisations;

(g) mechanisms
for monitoring and ensuring compliance with the code by the controllers
adherent to it;

(h) out-of-court
proceedings and other dispute resolution procedures for resolving disputes
between controllers and data subjects with respect to the processing of
personal data, without prejudice to the rights of the data subjects pursuant to
Articles 73 and 75.

2. Associations and other
bodies representing categories of controllers or processors in one Member State
which intend to draw up codes of conduct or to amend or extend existing codes
of conduct may submit them to an opinion of the supervisory authority in that Member
State. The supervisory authority may give an opinion whether the draft code of
conduct or the amendment is in compliance with this Regulation. The supervisory
authority shall seek the views of data subjects or their representatives on
these drafts.

3. Associations and other
bodies representing categories of controllers in several Member States may
submit draft codes of conduct and amendments or extensions to existing codes of
conduct to the Commission.

4. The
Commission may adopt implementing acts for deciding that the codes of conduct and amendments or extensions to existing codes
of conduct submitted to it pursuant to paragraph 3 have general validity within
the Union. Those implementing acts shall be adopted in accordance with the
examination procedure set out in Article 87(2).

5. The Commission shall
ensure appropriate publicity for the codes which have been decided as having
general validity in accordance with paragraph 4.

Article 39
Certification

1. The
Member States and the Commission shall encourage, in particular at European
level, the establishment of data protection certification mechanisms and of data
protection seals and marks, allowing data subjects to quickly assess the level
of data protection provided by controllers and processors. The data protection certifications
mechanisms shall contribute to the proper application
of this Regulation, taking account of the specific features of the various
sectors and different processing operations.

2. The Commission shall be empowered to adopt delegated acts in accordance
with Article 86 for the purpose of further specifying the criteria and
requirements for the data protection certification
mechanisms referred to in paragraph 1, including conditions for granting and withdrawal,
and requirements for recognition within the Union and in third countries.

3. The
Commission may lay down technical standards for certification mechanisms and data
protection seals and marks and mechanisms to promote and recognize
certification mechanisms and data protection seals and marks. Those implementing acts shall be adopted in
accordance with the examination procedure set out in Article 87(2).

CHAPTER V
TRANSFER OF PERSONAL DATA TO
THIRD COUNTRIES OR INTERNATIONAL ORGANISATIONS

Article 40
General principle for transfers

Any transfer of personal data which are
undergoing processing or are intended for processing after transfer to a third
country or to an international organisation may only take place if, subject to
the other provisions of this Regulation, the conditions laid down in this
Chapter are complied with by the controller and processor, including for onward
transfers of personal data from the third country or an international
organisation to another third country or to another international organisation.

Article 41
Transfers with an adequacy decision

1. A transfer may take place
where the Commission has decided that the third country, or a territory or a
processing sector within that third country, or the international organisation
in question ensures an adequate level of protection. Such transfer shall not
require any further authorisation.

2. When assessing the
adequacy of the level of protection, the Commission shall give consideration to
the following elements:

(a) the rule of law, relevant legislation
in force, both general and sectoral, including concerning public security,
defence, national security and criminal law, the professional rules and
security measures which are complied with in that country or by that
international organisation, as well as effective and enforceable rights
including effective administrative and judicial redress for data subjects, in
particular for those data subjects residing in the Union whose personal data
are being transferred;

(b) the existence and effective
functioning of one or more independent supervisory authorities in the third
country or international organisation in question responsible for ensuring
compliance with the data protection rules, for assisting and advising the data
subjects in exercising their rights and for co-operation with the supervisory
authorities of the Union and of Member States; and

(c) the international commitments the
third country or international organisation in question has entered into.

3. The Commission may decide that
a third country, or a territory or a processing sector within that third
country, or an international organisation ensures an adequate level of
protection within the meaning of paragraph 2. Those implementing acts shall be
adopted in accordance with the examination procedure referred to in Article 87(2).

4. The implementing act shall
specify its geographical and sectoral application, and, where applicable,
identify the supervisory authority mentioned in point (b) of paragraph 2.

5. The Commission may decide that
a third country, or a territory or a processing sector within that third
country, or an international organisation does not ensure an adequate level of
protection within the meaning of paragraph 2 of this Article, in particular in
cases where the relevant legislation, both general and sectoral, in force in
the third country or international organisation, does not guarantee effective
and enforceable rights including effective administrative and judicial redress
for data subjects, in particular for those data subjects residing in the Union whose
personal data are being transferred. Those implementing acts shall be adopted
in accordance with the examination procedure referred to in Article 87(2), or,
in cases of extreme urgency for individuals with respect to their right to personal
data protection, in accordance with the procedure referred to in Article 87(3).

6. Where the Commission
decides pursuant to paragraph 5, any transfer of personal data to the third
country, or a territory or a processing sector within that third country, or
the international organisation in question shall be prohibited, without
prejudice to Articles 42 to 44. At the appropriate time, the Commission shall
enter into consultations with the third country or international organisation with
a view to remedying the situation resulting from the Decision made pursuant to
paragraph 5 of this Article.

7. The Commission shall publish
in the Official Journal of the European Union a list of those third
countries, territories and processing sectors within a third country and
international organisations where it has decided that an adequate level of
protection is or is not ensured.

8. Decisions adopted by the
Commission on the basis of Article 25(6) or Article 26(4) of Directive 95/46/EC
shall remain in force, until amended, replaced or repealed by the Commission.

Article 42
Transfers by way of appropriate safeguards

1. Where the Commission has
taken no decision pursuant to Article 41, a controller or processor may transfer
personal data to a third country or an international organisation only if the
controller or processor has adduced appropriate safeguards with respect to the
protection of personal data in a legally binding instrument.

2. The appropriate safeguards
referred to in paragraph 1 shall be provided for, in particular, by:

(a) binding corporate rules in accordance
with Article 43; or

(b) standard data protection clauses
adopted by the Commission. Those implementing acts shall be adopted in
accordance with the examination procedure referred to in Article 87(2); or

(c) standard data protection clauses
adopted by a supervisory authority in accordance with the consistency mechanism
referred to in Article 57 when declared generally valid by the Commission
pursuant to point (b) of Article 62(1); or

(d) contractual clauses between the
controller or processor and the recipient of the data authorised by a
supervisory authority in accordance with paragraph 4.

3. A transfer based on
standard data protection clauses or binding corporate rules as referred to in
points (a), (b) or (c) of paragraph 2 shall not require any further authorisation.

4. Where a transfer is based
on contractual clauses as referred to in point (d) of paragraph 2 of this
Article the controller or processor shall obtain prior authorisation of the contractual
clauses according to point (a) of Article 34(1) from the supervisory authority.
If the transfer is related to processing activities which concern data subjects
in another Member State or other Member States, or substantially affect the
free movement of personal data within the Union, the supervisory authority
shall apply the consistency mechanism referred to in Article 57.

5. Where the appropriate
safeguards with respect to the protection of personal data are not provided for
in a legally binding instrument, the controller or processor shall obtain prior
authorisation for the transfer, or a set of transfers, or for provisions to be
inserted into administrative arrangements providing the basis for such transfer.
Such authorisation by the supervisory authority shall be in accordance with
point (a) of Article 34(1). If the transfer is related to processing activities
which concern data subjects in another Member State or other Member States, or
substantially affect the free movement of personal data within the Union, the
supervisory authority shall apply the consistency mechanism referred to in
Article 57. Authorisations by a supervisory authority on the basis of Article
26(2) of Directive 95/46/EC shall remain valid, until amended, replaced or
repealed by that supervisory authority.

Article 43
Transfers by way of binding corporate rules

1. A supervisory authority
shall in accordance with the consistency mechanism set out in Article 58 approve
binding corporate rules, provided that they:

(a) are legally binding and apply to and
are enforced by every member within the controller’s or processor's group of
undertakings, and include their employees;

(b) expressly confer enforceable rights on
data subjects;

(c) fulfil the requirements laid down in
paragraph 2.

2. The binding corporate
rules shall at least specify:

(a) the structure and contact details of
the group of undertakings and its members;

(b) the data transfers or set of
transfers, including the categories of personal data, the type of processing and
its purposes, the type of data subjects affected and the identification of the
third country or countries in question;

(c) their legally binding nature, both
internally and externally;

(d) the general data protection
principles, in particular purpose limitation, data quality, legal basis for the
processing, processing of sensitive personal data; measures to ensure data
security; and the requirements for onward transfers to organisations which are
not bound by the policies;

(e) the rights of data subjects and the
means to exercise these rights, including the right not to be subject to a
measure based on profiling in accordance with Article 20, the right to lodge a
complaint before the competent supervisory authority and before the competent
courts of the Member States in accordance with Article 75, and to obtain
redress and, where appropriate, compensation for a breach of the binding
corporate rules;

(f) the acceptance by the controller or
processor established on the territory of a Member State of liability for any
breaches of the binding corporate rules by any member of the group of
undertakings not established in the Union; the controller or the processor may
only be exempted from this liability, in whole or in part, if he proves that
that member is not responsible for the event giving rise to the damage;

(g) how the information on the binding
corporate rules, in particular on the provisions referred to in points (d), (e)
and (f) of this paragraph is provided to the data subjects in accordance with
Article 11;

(h) the tasks of the data protection
officer designated in accordance with Article 35, including monitoring within
the group of undertakings the compliance with the binding corporate rules, as
well as monitoring the training and complaint handling;

(i) the mechanisms within the group of
undertakings aiming at ensuring the verification of compliance with the binding
corporate rules;

(j) the mechanisms for reporting and
recording changes to the policies and reporting these changes to the
supervisory authority;

(k) the co-operation mechanism with the
supervisory authority to ensure compliance by any member of the group of
undertakings, in particular by making available to the supervisory authority
the results of the verifications of the measures referred to in point (i) of
this paragraph.

3. The Commission shall be empowered to adopt delegated acts in accordance
with Article 86 for the purpose of further specifying the criteria and
requirements for binding corporate rules within the meaning of this
Article, in particular as regards the criteria for their approval, the
application of points (b), (d), (e) and (f) of paragraph 2 to binding corporate
rules adhered to by processors and on further necessary requirements to ensure
the protection of personal data of the data subjects concerned.

4. The Commission may specify
the format and procedures for the exchange of information by electronic means
between controllers, processors and supervisory authorities for binding
corporate rules within the meaning of this Article. Those implementing acts
shall be adopted in accordance with the examination procedure set out in Article
87(2).

Article 44
Derogations

1. In the absence of an
adequacy decision pursuant to Article 41 or of appropriate safeguards pursuant
to Article 42, a transfer or a set of transfers of personal data to a third
country or an international organisation may take place only on condition that:

(a) the data subject has consented to the
proposed transfer, after having been informed of the risks of such transfers
due to the absence of an adequacy decision and appropriate safeguards; or

(b) the transfer is necessary for the
performance of a contract between the data subject and the controller or the
implementation of pre-contractual measures taken at the data subject's request;
or

(c) the transfer is necessary for the
conclusion or performance of a contract concluded in the interest of the data
subject between the controller and another natural or legal person; or

(d) the transfer is necessary for important
grounds of public interest; or

(e) the transfer is necessary for the
establishment, exercise or defence of legal claims; or

(f) the transfer is necessary in order to
protect the vital interests of the data subject or of another person, where the data subject is physically or legally
incapable of giving consent; or

(g) the transfer is made from a register
which according to Union or Member State law is intended to provide information
to the public and which is open to consultation either by the public in general
or by any person who can demonstrate legitimate interest, to the extent that
the conditions laid down in Union or Member State law for consultation are
fulfilled in the particular case; or

(h) the transfer is necessary for the
purposes of the legitimate interests pursued by the controller or the processor,
which cannot be qualified as frequent or massive, and where the controller or
processor has assessed all the circumstances surrounding the data transfer
operation or the set of data transfer operations and based on this assessment
adduced appropriate safeguards with respect to the protection of personal data,
where necessary.

2. A transfer pursuant to
point (g) of paragraph 1 shall not involve the entirety of the personal data or
entire categories of the personal data contained in the register. When the
register is intended for consultation by persons having a legitimate interest,
the transfer shall be made only at the request of those persons or if they are
to be the recipients.

3. Where the processing is
based on point (h) of paragraph 1, the controller or processor shall give
particular consideration to the nature of the data, the purpose and duration of
the proposed processing operation or operations, as well as the situation in
the country of origin, the third country and the country of final destination,
and adduced appropriate safeguards with respect to the protection of personal
data, where necessary.

4. Points (b), (c) and (h) of
paragraph 1 shall not apply to activities carried out by public authorities in
the exercise of their public powers.

5. The public interest
referred to in point (d) of paragraph 1 must be recognised in Union law or in
the law of the Member State to which the controller is subject.

6. The controller or
processor shall document the assessment as well as the appropriate safeguards
adduced referred to in point (h) of paragraph 1 of this Article in the
documentation referred to in Article 28 and shall inform the supervisory
authority of the transfer.

7. The Commission shall be empowered to adopt delegated acts in accordance
with Article 86 for the purpose of further specifying 'important grounds of
public interest' within the meaning of point (d) of paragraph 1 as well as the
criteria and requirements for appropriate safeguards referred to in point
(h) of paragraph 1.

Article 45
International co-operation for the protection of personal data

1. In relation to third
countries and international organisations, the Commission and supervisory
authorities shall take appropriate steps to:

(a) develop effective international
co-operation mechanisms to facilitate the enforcement of legislation for the
protection of personal data;

(b) provide international mutual
assistance in the enforcement of legislation for the protection of personal
data, including through notification, complaint referral, investigative
assistance and information exchange, subject to appropriate safeguards for the
protection of personal data and other fundamental rights and freedoms;

(c) engage relevant stakeholders in
discussion and activities aimed at furthering international co-operation in the
enforcement of legislation for the protection of personal data;

(d) promote the exchange and documentation
of personal data protection legislation and practice.

2. For the purposes of
paragraph 1, the Commission shall take appropriate steps to advance the
relationship with third countries or international organisations, and in
particular their supervisory authorities, where the Commission has decided that
they ensure an adequate level of protection within the meaning of Article 41(3).

CHAPTER VI
INDEPENDENT SUPERVISORY
AUTHORITIES

SECTION
1
INDEPENDENT STATUS

Article 46
Supervisory authority

1. Each Member State shall
provide that one or more public authorities are responsible for monitoring the
application of this Regulation and for contributing to its consistent
application throughout the Union, in order to protect the fundamental rights
and freedoms of natural persons in relation to the processing of their personal
data and to facilitate the free flow of personal data within the Union. For these
purposes, the supervisory authorities shall co-operate with each other and the
Commission.

2. Where in a Member State more
than one supervisory authority are established, that Member State shall designate
the supervisory authority which functions as a single contact point for the effective
participation of those authorities in the European Data Protection Board and
shall set out the mechanism to ensure compliance by the other authorities with
the rules relating to the consistency mechanism referred to in Article 57.

3. Each Member State shall
notify to the Commission those provisions of its law which it adopts pursuant
to this Chapter, by the date specified in Article 91(2) at the latest and,
without delay, any subsequent amendment affecting them.

Article 47
Independence

1. The supervisory authority
shall act with complete independence in exercising the duties and powers entrusted
to it.

2. The members of the supervisory
authority shall, in the performance of their duties, neither seek nor take
instructions from anybody.

3. Members of the supervisory
authority shall refrain from any action incompatible with their duties and
shall not, during their term of office, engage in any incompatible occupation,
whether gainful or not.

4. Members of the supervisory
authority shall behave, after their term of office, with integrity and
discretion as regards the acceptance of appointments and benefits.

5. Each Member State shall
ensure that the supervisory authority is provided with the adequate human,
technical and financial resources, premises and infrastructure necessary for
the effective performance of its duties and powers, including those to be
carried out in the context of mutual assistance, co-operation and participation
in the European Data Protection Board.

6. Each Member State shall
ensure that the supervisory authority has its own staff which shall be
appointed by and be subject to the direction of the head of the supervisory
authority.

7. Member States shall ensure
that the supervisory authority is subject to financial control which shall not affect
its independence. Member States shall ensure that the supervisory authority has
separate annual budgets. The budgets shall be made public.

Article 48
General conditions for the members of the supervisory authority

1. Member States shall
provide that the members of the supervisory authority must be appointed either
by the parliament or the government of the Member State concerned.

2. The members shall be
chosen from persons whose independence is beyond doubt and whose experience and
skills required to perform their duties notably in the area of protection of
personal data are demonstrated.

3. The duties of a member
shall end in the event of the expiry of the term of office, resignation or
compulsory retirement in accordance with paragraph 5.

4. A member may be dismissed
or deprived of the right to a pension or other benefits in its stead by the
competent national court, if the member no longer fulfils the conditions
required for the performance of the duties or is guilty of serious misconduct.

5. Where the term of office
expires or the member resigns, the member shall continue to exercise the duties
until a new member is appointed.

Article 49
Rules on the establishment of the supervisory authority

Each Member
State shall provide by law within the limits of this Regulation:

(a) the establishment and status of the
supervisory authority;

(b) the qualifications, experience and
skills required to perform the duties of the members of the supervisory
authority;

(c) the rules and procedures for the
appointment of the members of the supervisory authority, as well the rules on
actions or occupations incompatible with the duties of the office;

(d) the duration of the term of the
members of the supervisory authority which shall be no less than four years,
except for the first appointment after entry into force of this Regulation,
part of which may take place for a shorter period where this is necessary to
protect the independence of the supervisory authority by means of a staggered
appointment procedure;

(e) whether the members of the supervisory
authority shall be eligible for reappointment;

(f) the regulations and common conditions
governing the duties of the members and staff of the supervisory authority;

(g) the rules and procedures on the
termination of the duties of the members of the supervisory authority,
including in case that they no longer fulfil the conditions required for the
performance of their duties or if they are guilty of serious misconduct.

Article 50
Professional secrecy

The members and the staff of the
supervisory authority shall be subject, both during and after their term of
office, to a duty of professional secrecy with regard to any confidential
information which has come to their knowledge in the course of the performance
of their official duties.

SECTION
2
DUTIES AND POWERS

Article 51
Competence

1. Each supervisory authority
shall exercise, on the territory of its own Member State, the powers conferred
on it in accordance with this Regulation.

2. Where the processing of
personal data takes place in the context of the activities of an establishment
of a controller or a processor in the Union, and the controller or processor is
established in more than one Member State, the supervisory authority of the
main establishment of the controller or processor shall be competent for the
supervision of the processing activities of the controller or the processor in
all Member States, without prejudice to the provisions of Chapter VII of this
Regulation.

3. The supervisory authority
shall not be competent to supervise processing operations of courts acting in
their judicial capacity.

Article 52
Duties

1. The supervisory authority
shall:

(a) monitor and ensure the application of
this Regulation;

(b) hear complaints lodged by any data
subject, or by an association representing that data subject in accordance with
Article 73, investigate, to the extent appropriate, the matter and inform the
data subject or the association of the progress and the outcome of the complaint
within a reasonable period, in particular if further investigation or
coordination with another supervisory authority is necessary;

(c) share information with and provide
mutual assistance to other supervisory authorities and ensure the consistency
of application and enforcement of this Regulation;

(d) conduct investigations either on its
own initiative or on the basis of a complaint or on request of another
supervisory authority, and inform the data subject concerned, if the data
subject has addressed a complaint to this supervisory authority, of the outcome
of the investigations within a reasonable period;

(e) monitor relevant developments, insofar
as they have an impact on the protection of personal data, in particular the
development of information and communication technologies and commercial
practices;

(f) be consulted by Member State
institutions and bodies on legislative and administrative measures relating to
the protection of individuals' rights and freedoms with regard to the
processing of personal data;

(g) authorise and be consulted on the processing
operations referred to in Article 34;

(h) issue an opinion on the draft codes of
conduct pursuant to Article 38(2);

(i) approve binding corporate rules
pursuant to Article 43;

(j) participate in the activities of the European
Data Protection Board.

2. Each supervisory authority
shall promote the awareness of the public on risks, rules, safeguards and
rights in relation to the processing of personal data. Activities addressed
specifically to children shall receive specific attention.

3. The supervisory authority
shall, upon request, advise any data subject in exercising the rights under this
Regulation and, if appropriate, co-operate with the supervisory authorities in
other Member States to this end.

4. For complaints referred to
in point (b) of paragraph 1, the supervisory authority shall provide a
complaint submission form, which can be completed electronically, without
excluding other means of communication.

5. The performance of the
duties of the supervisory authority shall be free of charge for the data
subject.

6. Where requests are manifestly
excessive, in particular due to their repetitive character, the supervisory
authority may charge a fee or not take the action requested by the data subject.
The supervisory authority shall bear the burden of proving the manifestly excessive
character of the request.

Article 53
Powers

1. Each supervisory authority
shall have the power:

(a) to notify the controller or the
processor of an alleged breach of the provisions governing the processing of
personal data, and, where appropriate, order the controller or the processor to
remedy that breach, in a specific manner, in order to improve the protection of
the data subject;

(b) to order the controller or the
processor to comply with the data subject's requests to exercise the rights
provided by this Regulation;

(c) to order the controller and the
processor, and, where applicable, the representative to provide any information
relevant for the performance of its duties;

(d) to ensure the compliance with prior
authorisations and prior consultations referred to in Article 34;

(e) to warn or admonish the controller or
the processor;

(f) to order the rectification, erasure
or destruction of all data when they have been processed in breach of the
provisions of this Regulation and the notification of such actions to third
parties to whom the data have been disclosed;

(g) to impose a temporary or definitive
ban on processing;

(h) to suspend data flows to a recipient
in a third country or to an international organisation;

(i) to issue opinions on any issue
related to the protection of personal data;

(j) to inform the national parliament,
the government or other political institutions as well as the public on any
issue related to the protection of personal data.

2. Each supervisory authority
shall have the investigative power to obtain from the controller or the
processor:

(a) access to all personal data and to all
information necessary for the performance of its duties;

(b) access to any of its premises, including
to any data processing equipment and means, where there are reasonable grounds
for presuming that an activity in violation of this Regulation is being carried
out there.

The powers referred to in point (b) shall be
exercised in conformity with Union law and Member State law.

3. Each supervisory authority
shall have the power to bring violations of this Regulation to the attention of
the judicial authorities and to engage in legal proceedings, in particular pursuant
to Article 74(4) and Article 75(2).

4. Each supervisory authority
shall have the power to sanction administrative offences, in particular those referred
to in Article 79(4), (5) and (6).

Article 54
Activity report

Each supervisory authority must draw up an
annual report on its activities. The report shall be presented to the national
parliament and shall be made be available to the public, the Commission and the
European Data Protection Board.

CHAPTER VII

CO-OPERATION AND CONSISTENCY

Section 1
Co-operation

Article 55
Mutual assistance

1. Supervisory authorities
shall provide each other relevant information and mutual assistance in order to
implement and apply this Regulation in a consistent manner, and shall put in
place measures for effective co-operation with one another. Mutual assistance
shall cover, in particular, information requests and supervisory measures, such
as requests to carry out prior authorisations and consultations, inspections
and prompt information on the opening of cases and ensuing developments where data subjects
in several Member States are likely to be affected by
processing operations.

2. Each supervisory authority
shall take all appropriate measures required to reply to the request of another
supervisory authority without delay and no later than one month after having
received the request. Such measures may include, in particular, the
transmission of relevant information on the course of an investigation or enforcement
measures to bring about the cessation or prohibition of processing operations
contrary to this Regulation.

3. The request for assistance
shall contain all the necessary information, including the purpose of the
request and reasons for the request. Information exchanged shall be used only
in respect of the matter for which it was requested.

4. A supervisory authority to
which a request for assistance is addressed may not refuse to comply with it
unless:

(a) it is not competent for the request;
or

(b) compliance with the request would be
incompatible with the provisions of this Regulation.

5. The requested supervisory
authority shall inform the requesting supervisory authority of the results or,
as the case may be, of the progress or the measures taken in order to meet the
request by the requesting supervisory
authority.

6. Supervisory authorities
shall supply the information requested by other supervisory authorities by
electronic means and within the shortest possible period of time, using a standardised format.

7. No fee shall be charged
for any action taken following a request for mutual assistance.

8. Where a supervisory
authority does not act within one month on request of another supervisory
authority, the requesting supervisory authorities shall be competent to take a
provisional measure on the territory of its Member State in accordance with
Article 51(1) and shall submit the matter to the European Data Protection Board
in accordance with the procedure referred to in Article 57.

9. The supervisory authority
shall specify the period of validity of such provisional measure. This period
shall not exceed three months. The supervisory authority shall, without delay,
communicate those measures, with full reasons, to the European Data Protection
Board and to the Commission.

10. The Commission may specify the
format and procedures for mutual assistance referred to in this article and the
arrangements for the exchange of information by electronic means between
supervisory authorities, and between supervisory authorities and the European
Data Protection Board, in particular the standardised format referred to in paragraph
6. Those implementing acts shall be adopted in accordance with the examination
procedure referred to in Article 87(2).

Article 56
Joint operations of supervisory
authorities

1. In order to step up co-operation
and mutual assistance, the supervisory authorities shall carry out joint
investigative tasks, joint enforcement measures and other joint operations, in
which designated members or staff from other Member States' supervisory
authorities are involved.

2. In cases where data
subjects in several Member States are likely to be
affected by processing operations, a supervisory authority of each of those Member States shall have the
right to participate in the joint investigative tasks or joint operations, as
appropriate. The competent supervisory authority shall invite the supervisory
authority of each of those Member States to take part
in the respective joint investigative tasks or joint operations and respond to the request of a supervisory authority to
participate in the operations without delay.

3. Each supervisory authority may, as a host supervisory authority, in compliance with
its own national law, and with the seconding supervisory
authority’s authorisation, confer executive powers,
including investigative tasks on the seconding supervisory
authority’s members or staff involved in joint
operations or, in so far as the host supervisory
authority’s law permits, allow the seconding supervisory authority’s members or staff to
exercise their executive powers in accordance with the seconding supervisory authority’s law. Such executive
powers may be exercised only under the guidance and, as a rule, in the presence
of members or staff from the host supervisory authority. The seconding supervisory authority's members or staff shall be subject to the host supervisory authority's national law. The
host supervisory authority shall
assume responsibility for their actions.

5. Where a supervisory
authority does not comply within one month with the obligation laid down in
paragraph 2, the other supervisory authorities shall be competent to take a
provisional measure on the territory of its Member State in accordance with
Article 51(1).

6. The supervisory authority
shall specify the period of validity of a provisional measure referred to in
paragraph 5. This period shall not exceed three months. The supervisory
authority shall, without delay, communicate those measures, with full reasons,
to the European Data Protection Board and to the Commission and shall submit
the matter in the mechanism referred to in Article 57.

Section 2
Consistency

Article 57
Consistency mechanism

For the purposes set out in Article 46(1),
the supervisory authorities shall co-operate with each other and the Commission
through the consistency mechanism as set out in this section.

Article 58
Opinion by the European Data Protection Board

1. Before a supervisory
authority adopts a measure referred to in paragraph 2, this supervisory
authority shall communicate the draft measure to the European Data Protection
Board and the Commission.

2. The obligation set out in
paragraph 1 shall apply to a measure intended to
produce legal effects and which:

(a) relates to processing activities which
are related to the offering of goods or services to data subjects in several
Member States, or to the monitoring of their behaviour; or

(b) may substantially affect the free
movement of personal data within the Union; or

(c) aims at adopting a list of the
processing operations subject to prior consultation pursuant to Article 34(5); or

(d) aims to determine standard data
protection clauses referred to in point (c) of Article 42(2); or

(e) aims to authorise contractual clauses
referred to in point (d) of Article 42(2); or

(f) aims to approve binding corporate rules
within the meaning of Article 43.

3. Any supervisory authority
or the European Data Protection Board may request that any
matter shall be dealt with in the consistency mechanism, in particular where a supervisory authority does not submit a draft measure referred to
in paragraph 2 or does not comply with the obligations for mutual assistance in
accordance with Article 55 or for joint operations in accordance with Article 56.

4. In order to ensure correct
and consistent application of this Regulation, the
Commission may request that any matter shall be dealt with in the consistency mechanism.

5. Supervisory authorities
and the Commission shall electronically communicate any relevant information, including as the case may be a
summary of the facts, the draft measure, and the grounds which make the
enactment of such measure necessary, using a
standardised format.

6. The chair of the European
Data Protection Board shall immediately electronically inform the members of the European Data Protection Board and the
Commission of any relevant information which has been communicated to it, using a standardised format. The chair of
the European Data Protection Board shall provide translations of relevant
information, where necessary.

7. The European Data
Protection Board shall issue an opinion on the matter, if the European Data
Protection Board so decides by simple majority of its members or any
supervisory authority or the Commission so requests within one week after the
relevant information has been provided according to paragraph 5. The opinion
shall be adopted within one month by simple majority of the members of the European
Data Protection Board. The chair of the European Data Protection Board shall
inform, without undue delay, the supervisory authority referred to, as the case
may be, in paragraphs 1 and 3, the Commission and the supervisory authority
competent under Article 51 of the opinion and make it public.

8. The supervisory authority
referred to in paragraph 1 and the supervisory authority competent under
Article 51 shall take account of the opinion of the European Data Protection Board
and shall within two weeks after the information on the opinion by the chair of
the European Data Protection Board, electronically communicate to the chair of the European Data Protection Board and
to the Commission whether it maintains or amends its draft measure and, if any,
the amended draft measure, using a standardised format.

Article 59
Opinion by the Commission

1. Within ten weeks after a
matter has been raised under Article 58, or at the latest within six weeks in
the case of Article 61, the Commission may adopt, in order to ensure correct
and consistent application of this Regulation, an opinion in relation to
matters raised pursuant to Articles 58 or 61.

2. Where the Commission has
adopted an opinion in accordance with paragraph 1, the supervisory authority concerned
shall take utmost account of the Commission’s opinion and inform the Commission
and the European Data Protection Board whether it intends to maintain or amend
its draft measure.

3. During the period referred
to in paragraph 1, the draft measure shall not be adopted by the supervisory
authority.

4. Where the supervisory
authority concerned intends not to follow the opinion of the Commission, it
shall inform the Commission and the European Data Protection Board thereof
within the period referred to in paragraph 1 and provide a justification. In
this case the draft measure shall not be adopted for one further month.

Article 60
Suspension of a draft measure

1. Within one month after the
communication referred to in Article 59(4), and where the Commission has
serious doubts as to whether the draft measure would ensure the correct
application of this Regulation or would otherwise result in its inconsistent
application, the Commission may adopt a reasoned decision requiring the
supervisory authority to suspend the adoption of the draft measure, taking into
account the opinion issued by the European Data Protection Board pursuant to
Article 58(7) or Article 61(2), where it appears necessary in order to:

(a) reconcile the diverging positions of
the supervisory authority and the European Data Protection Board, if this still
appears to be possible; or

(b) adopt a measure pursuant to point (a)
of Article 62(1).

2. The Commission shall specify
the duration of the suspension which shall not exceed 12 months.

3. During the period referred
to in paragraph 2, the supervisory authority may not adopt the draft measure.

Article 61
Urgency procedure

1. In exceptional
circumstances, where a supervisory authority considers that there is an urgent
need to act in order to protect the interests of data subjects, in particular
when the danger exists that the enforcement of a right of a data subject could
be considerably impeded by means of an alteration of the existing state or for
averting major disadvantages or for other reasons, by way of derogation from
the procedure referred to in Article 58, it may immediately adopt provisional
measures with a specified period of validity. The supervisory authority shall,
without delay, communicate those measures, with full reasons, to the European
Data Protection Board and to the Commission.

2. Where a supervisory
authority has taken a measure pursuant to paragraph 1 and considers that final
measures need urgently be adopted, it may request an urgent opinion of the
European Data Protection Board, giving reasons for requesting such opinion,
including for the urgency of final measures.

3. Any supervisory authority
may request an urgent opinion where the competent supervisory authority has not
taken an appropriate measure in a situation where there is an urgent need to
act, in order to protect the interests of data subjects, giving reasons for
requesting such opinion, including for the urgent need to act.

4. By derogation from Article
58(7), an urgent opinion referred to in paragraphs 2 and 3 of this Article shall
be adopted within two weeks by simple majority of the members of the European
Data Protection Board.

Article 62
Implementing acts

1. The Commission may adopt implementing acts for:

(a) deciding on the correct application of
this Regulation in accordance with its objectives and requirements in relation
to matters communicated by supervisory authorities pursuant to Article 58 or 61,
concerning a matter in relation to which a reasoned decision has been adopted
pursuant to Article 60(1), or concerning a matter in relation to which a
supervisory authority does not submit a draft measure and that supervisory
authority has indicated that it does not intend to follow the opinion of the
Commission adopted pursuant to Article 59;

(b) deciding, within the period referred
to in Article 59(1), whether it declares draft standard data protection clauses
referred to in point (d) of Article 58(2), as having general validity;

(c) specifying the format and procedures
for the application of the consistency mechanism referred to in this section;

(d) specifying the arrangements for the
exchange of information by electronic means between supervisory authorities,
and between supervisory authorities and the European Data Protection Board, in
particular the standardised format referred to in Article 58(5), (6) and (8).

Those
implementing acts shall be adopted in accordance with the examination procedure
referred to in Article 87(2).

2. On duly justified
imperative grounds of urgency relating to the interests of data subjects in the
cases referred to in point (a) of paragraph 1, the Commission shall adopt
immediately applicable implementing acts in accordance with the procedure
referred to in Article 87(3). Those acts shall remain in force for a period not
exceeding 12 months.

3. The absence or adoption of
a measure under this Section does not prejudice any other measure by the
Commission under the Treaties.

Article 63
Enforcement

1. For the purposes of this Regulation,
an enforceable measure of the supervisory authority of one Member State shall
be enforced in all Member States concerned.

2. Where a supervisory
authority does not submit a draft measure to the consistency mechanism in
breach of Article 58(1) to (5), the measure of the supervisory authority shall
not be legally valid and enforceable.

Section
3
European Data Protection Board

Article 64
European Data Protection Board

1. A European Data Protection
Board is hereby set up.

2. The European Data
Protection Board shall be composed of the head of one supervisory authority of
each Member State and of the European Data Protection Supervisor.

3. Where in a Member State
more than one supervisory authority is responsible for monitoring the
application of the provisions pursuant to this Regulation, they shall nominate
the head of one of those supervisory authorities as joint representative.

4. The Commission shall have
the right to participate in the activities and meetings of the European Data
Protection Board and shall designate a representative. The chair of the European
Data Protection Board shall, without delay, inform the Commission on all
activities of the European Data Protection Board.

Article 65
Independence

1. The European Data
Protection Board shall act independently when exercising its tasks pursuant to
Articles 66 and 67.

2. Without prejudice to
requests by the Commission referred to in point (b) of paragraph 1 and in paragraph
2 of Article 66, the European Data Protection Board shall, in the performance
of its tasks, neither seek nor take instructions from anybody.

Article 66
Tasks of the European Data Protection
Board

1. The European Data
Protection Board shall ensure the consistent application of this Regulation. To
this effect, the European Data Protection Board shall, on its own initiative or
at the request of the Commission, in particular:

(a) advise the Commission on any issue
related to the protection of personal data in the Union, including on any
proposed amendment of this Regulation;

(b) examine, on its own initiative or on
request of one of its members or on request of the Commission, any question
covering the application of this Regulation and issue guidelines,
recommendations and best practices addressed to the supervisory authorities in
order to encourage consistent application of this Regulation;

(c) review the practical application of
the guidelines, recommendations and best practices referred to in point (b) and
report regularly to the Commission on these;

(d) issue opinions on draft decisions of
supervisory authorities pursuant to the consistency mechanism referred to in
Article 57;

(e) promote the co-operation and the effective
bilateral and multilateral exchange of information and practices between the
supervisory authorities;

(f) promote common training programmes
and facilitate personnel exchanges between the supervisory authorities, as well
as, where appropriate, with the supervisory authorities of third countries or
of international organisations;

(g) promote the exchange of knowledge and
documentation on data protection legislation and practice with data protection
supervisory authorities worldwide.

2. Where the Commission
requests advice from the European Data Protection Board, it may lay out a time
limit within which the European Data Protection Board shall provide such
advice, taking into account the urgency of the matter.

3. The European Data
Protection Board shall forward its opinions, guidelines, recommendations, and
best practices to the Commission and to the committee referred to in Article 87
and make them public.

4. The Commission shall
inform the European Data Protection Board of the action it has taken following the
opinions, guidelines, recommendations and best practices issued by the European
Data Protection Board.

Article 67
Reports

1. The European Data
Protection Board shall regularly and timely inform the Commission about the
outcome of its activities. It shall draw up an annual report on the situation
regarding the protection of natural persons with regard to the processing of
personal data in the Union and in third countries.

The report shall include the review of the
practical application of the guidelines, recommendations and best practices referred
to in point (c) of Article 66(1).

2. The report shall be made
public and transmitted to the European Parliament, the Council and the
Commission.

Article 68
Procedure

1. The European Data
Protection Board shall take decisions by a simple majority of its members.

2. The European Data
Protection Board shall adopt its own rules of procedure and organise its own
operational arrangements. In particular, it shall provide for the continuation
of exercising duties when a member’s term of office expires or a member resigns,
for the establishment of subgroups for specific issues or sectors and for its procedures
in relation to the consistency mechanism referred to in Article 57.

Article 69
Chair

1. The European Data
Protection Board shall elect a chair and two deputy chairpersons from amongst
its members. One deputy chairperson shall be the European Data Protection
Supervisor, unless he or she has been elected chair.

2. The term of office of the chair
and of the deputy chairpersons shall be five years and be renewable.

Article 70
Tasks of the chair

1. The chair shall have the following
tasks:

(a) to convene the meetings of the
European Data Protection Board and prepare its agenda;

(b) to ensure the timely fulfilment of the
tasks of the European Data Protection Board, in particular in relation to the
consistency mechanism referred to in Article 57.

2. The European Data
Protection Board shall lay down the attribution of tasks between the chair and
the deputy chairpersons in its rules of procedure.

Article 71
Secretariat

1. The European Data
Protection Board shall have a secretariat. The European Data Protection
Supervisor shall provide that secretariat.

2. The secretariat shall
provide analytical, administrative and logistical support to the European Data
Protection Board under the direction of the chair.

3. The secretariat shall be
responsible in particular for:

(a) the day-to-day business of the
European Data Protection Board;

(b) the communication between the members
of the European Data Protection Board, its chair and the Commission and for
communication with other institutions and the public;

(c) the use of electronic means for the
internal and external communication;

(d) the translation of relevant
information;

(e) the preparation and follow-up of the
meetings of the European Data Protection Board;

(f) the preparation, drafting and
publication of opinions and other texts adopted by the European Data Protection
Board.

Article 72
Confidentiality

1. The discussions of the European
Data Protection Board shall be confidential.

2. Documents submitted to
members of the European Data Protection Board, experts and representatives of
third parties shall be confidential, unless access is granted to those
documents in accordance with Regulation (EC) No 1049/2001 or the European Data
Protection Board otherwise makes them public.

3. The members of the European
Data Protection Board, as well as experts and representatives of third parties,
shall be required to respect the confidentiality obligations set out in this
Article. The chair shall ensure that experts and representatives of third
parties are made aware of the confidentiality requirements imposed upon them.

CHAPTER VIII

REMEDIES, LIABILITY AND SANCTIONS

Article 73
Right to lodge a complaint with a supervisory authority

1. Without prejudice to any
other administrative or judicial remedy, every data subject shall have the
right to lodge a complaint with a supervisory authority in any Member State if they
consider that the processing of personal data relating to them does not comply
with this Regulation.

2. Any body, organisation or
association which aims to protect data subjects’ rights and interests
concerning the protection of their personal data and has been properly
constituted according to the law of a Member State shall have the right to
lodge a complaint with a supervisory authority in any Member State on behalf of
one or more data subjects if it considers that a data subject’s rights under
this Regulation have been infringed as a result of the processing of personal
data.

3. Independently of a data
subject's complaint, any body, organisation or association referred to in
paragraph 2 shall have the right to lodge a complaint with a supervisory
authority in any Member State, if it considers that a personal data breach has occurred.

Article 74
Right to a judicial remedy against a
supervisory authority

1. Each natural or legal
person shall have the right to a judicial remedy against decisions of a
supervisory authority concerning them.

2. Each data subject shall
have the right to a judicial remedy obliging the supervisory authority to act
on a complaint in the absence of a decision necessary to protect their rights,
or where the supervisory authority does not inform the data subject within
three months on the progress or outcome of the complaint pursuant to point (b)
of Article 52(1).

3. Proceedings against a supervisory authority shall be
brought before the courts of the Member State where the supervisory authority
is established.

4. A data subject which is
concerned by a decision of a supervisory authority in another Member State than
where the data subject has its habitual residence, may request the supervisory
authority of the Member State where it has its habitual residence to bring
proceedings on its behalf against the competent supervisory authority in the
other Member State.

5. The Member States shall enforce
final decisions by the courts referred to in this Article.

Article 75
Right to a judicial remedy against a controller or processor

1. Without prejudice to any
available administrative remedy, including the right to lodge a complaint with
a supervisory authority as referred to in Article 73, every natural person
shall have the right to a judicial remedy if they consider that their rights
under this Regulation have been infringed as a result of the processing of their
personal data in non-compliance with this Regulation.

2. Proceedings against a
controller or a processor shall be brought before the courts of the Member
State where the controller or processor has an establishment. Alternatively,
such proceedings may be brought before the courts of the Member State where the
data subject has its habitual residence, unless the controller is a public
authority acting in the exercise of its public powers.

3. Where proceedings are
pending in the consistency mechanism referred to in Article 58, which concern the
same measure, decision or practice, a court may suspend the proceedings brought
before it, except where the urgency of the matter for the protection of the
data subject's rights does not allow to wait for the outcome of the procedure
in the consistency mechanism.

4. The
Member States shall enforce final decisions by the courts referred to in this
Article.

Article 76
Common rules for court proceedings

1. Any body, organisation or
association referred to in Article 73(2) shall have the right to exercise the
rights referred to in Articles 74 and 75 on behalf of one or more data
subjects.

2. Each supervisory authority
shall have the right to engage in legal proceedings and bring an action to
court, in order to enforce the provisions of this Regulation or to ensure
consistency of the protection of personal data within the Union.

3. Where a competent court of
a Member State has reasonable grounds to believe that parallel proceedings are
being conducted in another Member State, it shall contact the competent court
in the other Member State to confirm the existence of such parallel
proceedings.

4. Where such parallel
proceedings in another Member State concern the same measure, decision or
practice, the court may suspend the proceedings.

5. Member States shall ensure
that court actions available under national law allow for the rapid adoption of
measures including interim measures, designed to terminate any alleged
infringement and to prevent any further impairment of the interests involved.

Article 77
Right to compensation and liability

1. Any person who has
suffered damage as a result of an unlawful processing operation or of an action
incompatible with this Regulation shall have the right to receive compensation
from the controller or the processor for the damage suffered.

2. Where more than one
controller or processor is involved in the processing, each controller or
processor shall be jointly and severally liable for the entire amount of the
damage.

3. The controller or the
processor may be exempted from this liability, in whole or in part, if the
controller or the processor proves that they are not responsible for the event
giving rise to the damage.

Article 78
Penalties

1. Member States shall lay
down the rules on penalties, applicable to infringements of the provisions of
this Regulation and shall take all measures necessary to ensure that they are
implemented, including where the controller did not comply with the obligation
to designate a representative. The penalties provided for must be effective,
proportionate and dissuasive.

2. Where the controller has
established a representative, any penalties shall be applied to the
representative, without prejudice to any penalties which could be initiated
against the controller.

3. Each Member State shall
notify to the Commission those provisions of its law which it adopts pursuant
to paragraph 1, by the date specified in Article 91(2) at the latest and,
without delay, any subsequent amendment affecting them.

Article 79
Administrative sanctions

1. Each supervisory authority
shall be empowered to impose administrative sanctions in accordance with this Article.

2. The administrative
sanction shall be in each individual case effective, proportionate and
dissuasive. The amount of the administrative fine shall be fixed with due
regard to the nature, gravity and duration of the breach, the intentional or
negligent character of the infringement, the degree of responsibility of the
natural or legal person and of previous breaches by this person, the technical
and organisational measures and procedures implemented pursuant to Article 23 and
the degree of co-operation with the supervisory authority in order to remedy
the breach.

3. In case of a first and
non-intentional non-compliance with this Regulation, a warning in writing may
be given and no sanction imposed, where:

(a)
a natural person is processing personal
data without a commercial interest; or

(b)
an enterprise or an organisation employing fewer
than 250 persons is processing personal data only as an activity ancillary to its
main activities.

4. The supervisory authority
shall impose a fine up to 250 000 EUR, or in case of an enterprise up to 0,5 %
of its annual worldwide turnover, to anyone who, intentionally or negligently:

(a)
does not provide the mechanisms for requests by
data subjects or does not respond promptly or not in the required format to
data subjects pursuant to Articles 12(1) and (2);

(b)
charges a fee for the information or for
responses to the requests of data subjects in violation of Article 12(4).

5. The supervisory authority
shall impose a fine up to 500 000 EUR, or in case of an enterprise up to 1 % of
its annual worldwide turnover, to anyone who, intentionally or negligently:

(a)
does not provide the information, or does
provide incomplete information, or does not provide the information in a
sufficiently transparent manner, to the data subject pursuant to Article 11,
Article 12(3) and Article 14;

(b)
does not provide access for the data subject or
does not rectify personal data pursuant to Articles 15 and 16 or does not
communicate the relevant information to a recipient pursuant to Article 13;

(c)
does not comply with the right to be forgotten
or to erasure, or fails to put mechanisms in place to ensure that the time
limits are observed or does not take all necessary steps to inform third
parties that a data subjects requests to erase any links
to, or copy or replication of the personal data pursuant
Article 17;

(d)
does not provide a copy of the personal data in
electronic format or hinders the data subject to transmit the personal data to
another application in violation of Article 18;

(e)
does not or not sufficiently determine the
respective responsibilities with co-controllers pursuant to Article 24;

(f)
does not or not sufficiently maintain the
documentation pursuant to Article 28, Article 31(4), and Article 44(3);

(g)
does not comply, in cases where special
categories of data are not involved, pursuant to Articles 80, 82 and 83 with
rules in relation to freedom of expression or with rules on the processing in
the employment context or with the conditions for processing for historical,
statistical and scientific research purposes.

6. The supervisory authority
shall impose a fine up to 1 000 000 EUR or, in case of an enterprise up to 2 %
of its annual worldwide turnover, to anyone who, intentionally or negligently:

(a)
processes personal data without any or
sufficient legal basis for the processing or does not comply with the
conditions for consent pursuant to Articles 6, 7 and 8;

(b)
processes special categories of data in
violation of Articles 9 and 81;

(c)
does not comply with an objection or the
requirement pursuant to Article 19;

(d)
does not comply with the conditions in relation
to measures based on profiling pursuant to Article 20;

(e)
does not adopt internal policies or does not
implement appropriate measures for ensuring and demonstrating compliance
pursuant to Articles 22, 23 and 30;

(f)
does not designate a representative pursuant to
Article 25;

(g)
processes or instructs the processing of
personal data in violation of the obligations in relation to processing on
behalf of a controller pursuant to Articles 26 and 27;

(h)
does not alert on or notify a personal data
breach or does not timely or completely notify the data breach to the
supervisory authority or to the data subject pursuant to Articles 31 and 32;

(i)
does not carry out a data protection impact
assessment pursuant or processes personal data without prior authorisation or
prior consultation of the supervisory authority pursuant to Articles 33 and 34;

(j)
does not designate a data protection officer or
does not ensure the conditions for fulfilling the tasks pursuant to Articles
35, 36 and 37;

(k)
misuses a data protection seal or mark in the
meaning of Article 39;

(l)
carries out or instructs a data transfer to a
third country or an international organisation that is not allowed by an
adequacy decision or by appropriate safeguards or by a derogation pursuant to
Articles 40 to 44;

(m)
does not comply with an order or a temporary or
definite ban on processing or the suspension of data flows by the supervisory
authority pursuant to Article 53(1);

(n)
does not comply with the obligations to assist
or respond or provide relevant information to, or access to premises by, the
supervisory authority pursuant to Article 28(3), Article 29, Article 34(6) and
Article 53(2);

(o)
does not comply with the rules for safeguarding
professional secrecy pursuant to Article 84.

7. The
Commission shall be empowered to adopt delegated acts in accordance with
Article 86 for the purpose of updating the amounts of
the administrative fines referred to in paragraphs 4, 5 and 6, taking into
account the criteria referred to in paragraph 2.

CHAPTER IX
PROVISIONS RELATING TO
SPECIFIC DATA PROCESSING SITUATIONS

Article 80
Processing of personal data and freedom of expression

1. Member
States shall provide for exemptions or derogations from the provisions on the general
principles in Chapter II, the rights of the data subject in Chapter III, on
controller and processor in Chapter IV, on the transfer of personal data to
third countries and international organisations in Chapter V, the independent
supervisory authorities in Chapter VI and on co-operation and consistency in
Chapter VII for the processing of personal data carried out solely for
journalistic purposes or the purpose of artistic or literary expression in order
to reconcile the right to the protection of personal data with the rules
governing freedom of expression.

2. Each Member State shall
notify to the Commission those provisions of its law which it has adopted pursuant
to paragraph 1 by the date specified in Article 91(2) at the latest and,
without delay, any subsequent amendment law or amendment affecting them.

Article 81
Processing of personal data concerning health

1. Within the limits of this
Regulation and in accordance with point (h) of Article 9(2), processing of personal
data concerning health must be on the basis of Union law or Member State law
which shall provide for suitable and specific measures to safeguard the data
subject's legitimate interests, and be necessary for:

(a) the purposes of preventive or
occupational medicine, medical diagnosis, the provision of care or treatment or
the management of health-care services, and where those data are processed by a
health professional subject to the obligation of professional secrecy or
another person also subject to an equivalent obligation of confidentiality
under Member State law or rules established by national competent bodies; or

(b) reasons of public interest in the area
of public health, such as protecting against serious cross-border threats to
health or ensuring high standards of quality and safety, inter alia for
medicinal products or medical devices; or

(c) other reasons of public interest in
areas such as social protection, especially in order to ensure the quality and
cost-effectiveness of the procedures used for settling claims for benefits and
services in the health insurance system.

2. Processing of personal
data concerning health which is necessary for historical, statistical or
scientific research purposes, such as patient registries set up for improving
diagnoses and differentiating between similar types of diseases and preparing
studies for therapies, is subject to the conditions and safeguards referred to
in Article 83.

3. The Commission shall be
empowered to adopt delegated acts in accordance with Article 86 for the purpose
of further specifying other reasons of public interest in the area of public
health as referred to in point (b) of paragraph 1, as well as criteria and
requirements for the safeguards for the processing of personal data for the
purposes referred to in paragraph 1.

Article 82
Processing in the employment context

1. Within the limits of this
Regulation, Member States may adopt by law
specific rules regulating the processing of employees' personal data in
the employment context, in particular for the purposes of the recruitment, the performance
of the contract of employment, including discharge
of obligations laid down by law or by collective agreements, management,
planning and organisation of work, health and safety at work, and for the
purposes of the exercise and enjoyment, on an individual or collective basis,
of rights and benefits related to employment, and for the purpose of the
termination of the employment relationship.

2. Each
Member State shall notify to the Commission those provisions of its law which
it adopts pursuant to paragraph 1, by the date specified in Article 91(2) at
the latest and, without delay, any subsequent amendment affecting them.

3. The Commission shall be empowered to adopt delegated acts in accordance
with Article 86 for the purpose of further specifying the criteria and
requirements for the safeguards for the processing of personal data for
the purposes referred to in paragraph 1.

Article 83
Processing for historical, statistical and scientific research purposes

1. Within the limits of this
Regulation, personal data may be processed for historical, statistical or
scientific research purposes only if:

(a) these purposes cannot be otherwise fulfilled
by processing data which does not permit or not any longer permit the
identification of the data subject;

(b) data enabling the attribution of
information to an identified or identifiable data subject is kept separately
from the other information as long as these purposes can be fulfilled in this
manner.

(a) the data subject has given consent,
subject to the conditions laid down in Article 7;

(b) the publication of personal data is
necessary to present research findings or to facilitate research insofar as the
interests or the fundamental rights or freedoms of the data subject do not
override these interests; or

(c) the data subject has made the data
public.

3. The
Commission shall be empowered to adopt delegated acts in accordance with
Article 86 for the purpose of further specifying the criteria and requirements for the processing of personal data for the purposes referred to in
paragraph 1 and 2 as well as any necessary limitations on the rights of
information to and access by the data subject and detailing the conditions and
safeguards for the rights of the data subject under these circumstances.

Article 84
Obligations of secrecy

1. Within
the limits of this Regulation, Member States may adopt specific rules to set
out the investigative powers by the supervisory authorities laid down in
Article 53(2) in relation to controllers or processors that are subjects under
national law or rules established by national competent bodies to an obligation
of professional secrecy or other equivalent obligations of secrecy, where this is necessary and proportionate to reconcile the
right of the protection of personal data with the obligation of secrecy. These
rules shall only apply with regard to personal data which the controller or
processor has received from or has obtained in an activity covered by this
obligation of secrecy.

2. Each Member State shall
notify to the Commission the rules adopted pursuant to paragraph 1, by the date
specified in Article 91(2) at the latest and, without delay, any subsequent
amendment affecting them.

1. Where in a Member State,
churches and religious associations or communities apply, at the time of entry
into force of this Regulation, comprehensive rules relating to the protection
of individuals with regard to the processing of personal data, such rules may
continue to apply, provided that they are brought in line with the provisions
of this Regulation.

2. Churches and religious
associations which apply comprehensive rules in accordance with paragraph 1
shall provide for the establishment of an independent supervisory authority in
accordance with Chapter VI of this Regulation.

CHAPTER X
DELEGATED ACTS AND IMPLEMENTING ACTS

Article 86
Exercise of the delegation

1. The power to adopt
delegated acts is conferred on the Commission subject to the conditions laid
down in this Article.

3. The delegation of power
referred to in Article 6(5), Article 8(3), Article 9(3), Article 12(5), Article
14(7), Article 15(3), Article 17(9), Article 20(6), Article 22(4), Article
23(3), Article 26(5), Article 28(5), Article 30(3), Article 31(5), Article
32(5), Article 33(6), Article 34(8), Article 35(11), Article 37(2), Article
39(2), Article 43(3), Article 44(7), Article 79(6), Article 81(3), Article 82(3)
and Article 83(3) may be revoked at any time by the European Parliament or by
the Council. A decision of revocation shall put an end to the delegation of
power specified in that decision. It shall take effect the day following the
publication of the decision in the Official Journal of the European Union
or at a later date specified therein. It shall not affect the validity of any
delegated acts already in force.

4. As soon as it adopts a
delegated act, the Commission shall notify it simultaneously to the European
Parliament and to the Council.

5. A
delegated act adopted pursuant to Article 6(5), Article 8(3), Article 9(3),
Article 12(5), Article 14(7), Article 15(3), Article 17(9), Article 20(6),
Article 22(4), Article 23(3), Article 26(5), Article 28(5), Article 30(3),
Article 31(5), Article 32(5), Article 33(6), Article 34(8), Article 35(11),
Article 37(2), Article 39(2), Article 43(3), Article 44(7), Article 79(6),
Article 81(3), Article 82(3) and Article 83(3) shall enter into force only if
no objection has been expressed either by the European Parliament or the
Council within a period of two months of notification of that act to the
European Parliament and the Council or if, before the expiry of that period,
the European Parliament and the Council have both informed the Commission that
they will not object. That period shall be extended by two months at the
initiative of the European Parliament or the Council.

Article 87
Committee procedure

1. The Commission shall be
assisted by a committee. That committee shall be a committee within the
meaning of Regulation (EU) No 182/2011.

2. Where reference is made
to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

3. Where reference is made
to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction
with Article 5 thereof, shall apply.

CHAPTER XI

FINAL PROVISIONS

Article 88
Repeal of Directive 95/46/EC

1. Directive 95/46/EC is
repealed.

2. References to the repealed Directive shall be construed as
references to this Regulation. References to the Working Party on the
Protection of Individuals with regard to the Processing of Personal Data established
by Article 29 of Directive 95/46/EC shall be construed as references to the
European Data Protection Board established by this Regulation.

Article 89
Relationship to and amendment of Directive 2002/58/EC

1. This Regulation shall not
impose additional obligations on natural or legal persons in relation to the
processing of personal data in connection with the provision of publicly
available electronic communications services in public communication networks
in the Union in relation to matters for which they are subject to specific
obligations with the same objective set out in Directive 2002/58/EC.

2 Article 1(2) of Directive
2002/58/EC shall be deleted.

Article 90
Evaluation

The Commission shall submit reports on the
evaluation and review of this Regulation to the European Parliament and the
Council at regular intervals. The first report shall be submitted no later than
four years after the entry into force of this Regulation. Subsequent reports
shall be submitted every four years thereafter. The Commission shall, if
necessary, submit appropriate proposals with a view to amending this Regulation,
and aligning other legal instruments, in particular taking account of
developments in information technology and in the light of the state of
progress in the information society. The reports shall be made public.

Article 91
Entry into force and application

1. This Regulation shall
enter into force on the twentieth day following that of its publication in the Official
Journal of the European Union.

2. It shall apply from [two
years from the date referred to in paragraph 1].

This Regulation shall be binding
in its entirety and directly applicable in all Member States.

This financial statement indicates in more
detail the requirements in terms of administrative expenditure in order to put
in practice the data protection reform, as explained in the corresponding
impact assessment. The reform includes two legislative proposals, a general
Data Protection Regulation and a Directive on the protection of individuals
with regard to the processing of personal data by competent authorities for the
purposes of prevention, investigation, detection or prosecution of criminal
offences or the execution of criminal penalties. This financial statement
covers the budgetary impact of both instruments.

According to the distribution of tasks, resources
are required by the Commission and by the European Data Protection Supervisor
(EDPS).

As regards the Commission, the necessary
resources are already included in the proposed financial perspective 2014-2020.
Data protection is one of the objectives of the Rights and Citizenship'
programme, which will also support measures to put the legal framework into
practice. The administrative appropriations including staff requirements are
included in the administrative budget for DG JUST.

As regards the EDPS, the necessary resources
will need to be taken into account in the respective annual budgets for the
EDPS. The resources are detailed in the annex of this financial statement. In
order to provide the resources required for the new tasks of the European Data Protection
Board, for which the EDPS will provide the secretariat, reprogramming of
Heading 5 of the financial perspective 2014-2020 will be required.

1.1.
Title of the proposal/initiative

Proposal for a Regulation of the European Parliament and of the
Council on the protection of individuals with regard to the processing of
personal data and on the free flow of such data (General Data Protection
Regulation).

Proposal for a Directive of the European Parliament and of the Council
on the protection of individuals with regard to the processing of personal data
by competent authorities for the purposes of prevention, investigation,
detection or prosecution of criminal offences or the execution of criminal
penalties, and the free movement of such data.

1.2.
Policy area(s) concerned in the ABM/ABB
structure[49]

Justice – Protection of Personal Data

The budgetary impact concerns the Commission and the EDPS. The
impact on the Commission budget is detailed in the tables of this financial
statement. Operational expenditure is part of the Rights and Citizenship
Programme and has been taken into account in the financial statement for that
programme already, as administrative expenditure is within the envelope for DG
Justice. The elements concerning the EDPS are shown in the Annex.

1.3.
Nature of the proposal/initiative

¨ The
proposal/initiative relates to a new action

¨ The
proposal/initiative relates to a new action following a pilot
project/preparatory action[50]

þ The proposal/initiative relates to the
extension of an existing action

¨ The
proposal/initiative relates to an action redirected towards a new action

The reform aims at
completing the achievement of the original objectives, taking account of new
developments and challenges, i.e.:

- increasing the
effectiveness of the fundamental right to data protection and putting
individuals in control of their data, particularly in the context of
technological developments and increased globalisation;

To rationalise the
current governance system to help ensuring a more consistent enforcement

ABM/ABB activity(ies)
concerned

[…]

1.4.3.
Expected result(s) and impact

Specify the effects
which the proposal/initiative should have on the beneficiaries/groups targeted.

As regards data controllers, both public and private entities shall
benefit from more legal certainty by harmonised and clarified EU data
protection rules and procedures creating a level playing field and ensuring
consistent enforcement of data protection rules, as well as a considerable
reduction of administrative burden.

Individuals will enjoy better control of their personal data and
trust the digital environment and will remain protected including when their
personal data are processed abroad. They will also encounter reinforced
accountability of those processing personal data.

A comprehensive data protection system will also cover the areas of
police and justice, including and beyond the former 3rd pillar.

1.4.4.
Indicators of results and impact

Specify the
indicators for monitoring implementation of the proposal/initiative.

(cf. Impact Assessment,
Section 8)

Indicators shall be
evaluated periodically and shall include the following elements:

• Time and
costs spent by data controllers in complying with legislation in ‘other Member
States’

• Resources
allocated to DPAs,

• established
DPOs in public and private organisations,

• Use made of
DPIA,

• number of
complaints made by data subjects and compensation received by data subjects,

1.5.
Grounds for the proposal/initiative
1.5.1.
Requirement(s) to be met in the short or long
term

The current divergences in the implementation,
interpretation and enforcement of the Directive by Member States hamper
the functioning of the internal market and co-operation between public
authorities in relation to EU policies. This goes against the
fundamental objective of the Directive of facilitating the free flow of
personal data in the internal market. The rapid development of new technologies
and globalisation further exacerbates this problem.

Individuals enjoy different data protection
rights, due to fragmentation and inconsistent implementation and enforcement in
different Member States. Furthermore, individuals are often neither aware
nor in control of what happens to their personal data and therefore
fail to exercise their rights effectively.

1.5.2.
Added value of EU involvement

Member States alone cannot reduce the problems in the current
situation. This is particularly the case for those problems that arise from the
fragmentation in national legislations implementing the EU data protection
regulatory framework. Thus, there is a strong rationale for a legal framework
for data protection at EU level. There is a particular need to establish a
harmonised and coherent framework allowing for a smooth transfer of personal
data across borders within the EU while ensuring effective protection to all
individuals across the EU.

1.5.3.
Lessons learned from similar experiences in the
past

The present proposals build on the experience with Directive
95/46/EC and the problems encountered due to fragmented transposition and
implementation of that Directive, which have blocked it from achieving both its
objectives, i.e. a high level of data protection and a single market for data
protection.

1.5.4.
Coherence and possible synergy with other
relevant instruments

The present Data
Protection Reform package aims at building a strong, consistent and modern data
protection framework at EU level - technologically neutral, and future proof
for the decades to come. It will benefit individuals – by strengthening their
data protection rights, particularly in the digital environment - and will
simplify the legal environment for businesses and the public sector, thus
stimulating the development of the digital economy across the EU internal
market and beyond, in line with the objectives of the Europe 2020 strategy.

The core of the data
protection reform package consists of:

– a Regulation
replacing Directive 95/46/EC;

– a Directive
on the protection of individuals with regard to the processing of personal data
by competent authorities for the purposes of prevention, detection,
investigation, detection or prosecution of criminal offences or the execution
of criminal penalties, and the free movement of such data.

These legislative
proposals are accompanied by a report on the implementation by Member States of
what is currently the main EU data protection instrument in the areas of police
co-operation and judicial co-operation in criminal matters, the Framework
Decision 2008/977/JHA.

3.
¨ persons entrusted with the implementation of specific actions
pursuant to Title V of the Treaty on European Union and identified in the
relevant basic act within the meaning of Article 49 of the Financial Regulation

¨ Shared management with the Member States

¨ Decentralised management with third countries

¨ Joint management with international organisations (to be specified)

If more than one management mode is indicated, please provide details in
the "Comments" section.

Comments

//

2.
MANAGEMENT MEASURES
2.1.
Monitoring and reporting rules

Specify frequency
and conditions.

The first evaluation will take place 4 years after the entry into
force of the legal instruments. An explicit review clause, by which the
Commission will evaluate the implementation, is included in the legal
instruments. The Commission will subsequently report to the European Parliament
and the Council on its evaluation. Further evaluations will have to take place
every four years. The Commission methodology on evaluation will be applied.
These evaluations will be conducted with the help of targeted studies on the
implementation of the legal instruments, questionnaires to national data
protection authorities, expert discussions, workshops, Eurobarometer surveys,
and so forth.

2.2.
Management and control system
2.2.1.
Risk(s) identified

An Impact Assessment
has been carried out for the reform of the data protection framework in the EU
to accompany the proposals for the Regulations and the Directive

The new legal
instrument will introduce a consistency mechanism, ensuring that independent
supervisory authorities in Member States apply the framework in a consistent
and coherent manner. The mechanism will operate through the European Data
Protection Board composed of the heads of the national supervisory authorities
and of the European Data Protection Supervisor (EDPS), which will replace the
current Article 29 Working Party. The EDPS will provide the secretariat for
this body.

In case of possibly
divergent decisions by Member States' authorities, the European Data Protection
Board will be consulted in order to issue an opinion on the matter. Should this
procedure fail, or if a supervisory authority refuses to comply with the opinion,
the Commission might, in order to ensure correct and consistent application of
this Regulation, may issue an opinion or, where necessary, adopt a decision,
where it has serious doubts as to whether the draft measure would ensure the
correct application of this Regulation or would otherwise result in its
inconsistent application.

The consistency
mechanism requires additional resources for the EDPS (12 FTE and adequate
administrative and operative appropriations, e.g., for IT systems and
operations) for providing the secretariat and for the Commission (5 FTE and
related administrative and operational appropriations) for the handling of
consistency cases.

2.2.2.
Control method(s) envisaged

Existing control methods applied by the EDPS and by the Commission
will cover the additional appropriations.

2.3.
Measures to prevent fraud and irregularities

Specify existing or envisaged prevention and
protection measures

Existing fraud
prevention measures applied by the EDPS and by the Commission will cover the
additional appropriations.

Number [Description………………………...……….] || Diff./non-diff. ([53]) || from EFTA[54] countries || from candidate countries[55] || from third countries || within the meaning of Article 18(1)(aa) of the Financial Regulation

6.
þ The proposal/initiative does not require the use of operational
appropriations

A high level of protection of personal data
is also one of the objectives of the Rights and Citizenships Programme.

7.
¨ The proposal/initiative requires the use of operational
appropriations, as explained below:

Commitment appropriations in EUR million (to 3 decimal
places)

Indicate objectives and outputs ò || || || Year N=2014 || Year N+1 || Year N+2 || Year N+3 || … enter as many years as necessary to show the duration of the impact (see point 1.6) || TOTAL

OUTPUTS

Type of output[59] || Average cost of the output || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Total number of outputs || Total cost

With the reform,
the Commission will have to perform new tasks in the area of the protection of
individuals regarding the processing of personal data, in addition to those
currently performed. The additional tasks mainly concern the implementation of
the new consistency mechanism which will ensure coherent application of
harmonised data protection law, the adequacy assessment of third countries for
which the Commission will have sole responsibility, and the preparation of
implementing measures and delegated acts. The other tasks currently performed
by the Commission (e.g. policy development, monitoring transposition, awareness
raising, complaints etc), will continue to be performed.

The human resources
required will be met by staff from the DG who are already assigned to
management of the action and/or have been redeployed within the DG, together if
necessary with any additional allocation which may be granted to the managing
DG under the annual allocation procedure and in the light of budgetary
constraints.

Description of
tasks to be carried out:

Officials and temporary agents || Case handlers, operating the data protection consistency mechanism to ensure unity of application of EU data protection rules. Tasks include investigation and research of cases submitted for decision from Member States' authorities, negotiation with Member States and preparation of Commission decisions. Based on recent experience, 5 to 10 cases per year may require invocation of the consistency mechanism. The handling of adequacy requests requires direct interaction with the requesting country, possibly the management of expert studies on the conditions in the country, assessment of the conditions, preparation of the relevant Commission decisions and of the process, including of the Committee assisting the Commission and any expert bodies as appropriate. Based on current experience, up to 4 adequacy requests can be expected per year. The process of adopting implementing measures includes preparatory measures, such as issue papers, research and public consultations, as well as the drafting of the actual instrument and management of the negotiation process in the relevant Committees and other groups, as well as stakeholder contacts in general. Across the areas requiring more precise guidance, up to three implementing measures may be handled per year, while the process may take up to 24 months, depending on the intensity of consultations.

External personnel || Administrative and secretarial support

3.2.4.
Compatibility with the current multiannual
financial framework

12.
¨ Proposal/initiative is compatible with the next
multiannual financial framework.

13.
þ Proposal/initiative will entail reprogramming of the
relevant heading in the multiannual financial framework.

The table
below indicates the amounts of financial resources required annually by the
EDPS for its new tasks of providing the secretariat of the European Data
Protection Board and the related procedures and tools over the period of the
next financial perspective, in addition to those already included in the planning.

Annex to
Legislative Financial Statement for proposal for a Regulation of the European
Parliament and of the Council on the protection of individuals regarding the
processing of personal data.

Applied
methodology and main underlying assumptions

The costs related to
the new tasks to be carried out by the European Data Protection Supervisor
(EDPS) stemming from the two proposals have been estimated for staff
expenditure on the basis of the costs incurred by the Commission currently for
similar tasks.

The EDPS will host
the secretariat of the European Data Protection Board replacing the Article 29
Working Party. On the basis of the Commission current workload for this task,
this results in the need for 3 additional FTE plus corresponding administrative
and operational expenditure. This workload will commence from the entry into
force of the Regulation.

Furthermore, the EDPS
will have a role in the consistency mechanism which is expected to require 5
FTEs, and in developing and operating a common IT tool for national DPAs, which
will require 2 additional staff members.

The
calculation of the increase in the required staff budget for the first seven
years is presented in more
detail in the table below. A second table shows the required operational
budget. This will be reflected in the Budget of the EU in Section IX EDPS.

Officials and temporary agents || Desk officers in charge of the secretariat of the Data Protection Board. Apart from logistics support, including budgetary and contractual issues, this includes the preparation of meeting agendas and expert invitations, research on subjects on the agenda of the group, management of the documents relating to the work of the group including the relevant data protection, confidentiality and public access requirements. Including all subgroups and expert groups, up to 50 meetings and decision procedures may have to be organised every year. Case handlers, operating the data protection consistency mechanism to ensure unity of application of EU data protection rules. Tasks include investigation and research of cases submitted for decision from Member States' authorities, negotiation with Member States and preparation of Commission decisions. Based on recent experience, there may be 5 to 10 cases per year requiring invocation of the consistency mechanism. The IT tool shall simplify the operational interaction between national DPAs and data controllers obliged to share information with the public authorities. The responsible staff member(s) will ensure quality control, project management and budgetary follow-up of the IT processes on requirements engineering, implementation and operation of the systems.

External personnel || Administrative and secretarial support

Expenditure for EDPS
relating to specific tasks

Indicate objectives and outputs ò || || || Year N=2014 || Year N+1 || Year N+2 || Year N+3 || enter as many years as necessary to show the duration of the impact (see point 1.6) || TOTAL

OUTPUTS

Type of output[69] || Average cost of the output || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Number of outputs || Cost || Total number of outputs || Total cost

[1] “Safeguarding Privacy in a Connected World – A
European Data Protection Framework for the 21st Century” COM(2012) 9 final.

[2] COM(2012) 10 final.

[3] Directive 95/46/EC of the European Parliament and of
the Council of 24 October 1995 on the protection of individuals with regard to
the processing of personal data and on the free movement of such data, OJ L 281,
23.11.1995, p.31.

[4] Council Framework Decision 2008/977/JHA of 27
November 2008 on the protection of personal data processed in the framework of
police and judicial cooperation in criminal matters, OJ L 350, 30.12.2008, p.
60 (‘Framework Decision’).

[8] Resolution of the European Parliament on the on the
Communication from the Commission to the European Parliament and the Council –
An area of freedom, security and justice serving the citizen – Stockholm
programme adopted 25 November 2009 (P7_TA(2009)0090).

[20] See the Study on the economic benefits of privacy enhancing
technologies and the Comparative study on different approaches to new
privacy challenges, in particular in the light of technological developments, January
2010
(http://ec.europa.eu/justice/policies/privacy/docs/studies/new_privacy_challenges/final_report_en.pdf)..

[21] The Working Party was set up in 1996 (by Article 29 of
Directive 95/46/EC) with advisory status and composed of representatives of
national Data Protection Supervisory Authorities (DPAs), the European Data
Protection Supervisor (EDPS) and the Commission. For more information on its
activities see http://ec.europa.eu/justice/policies/privacy/workinggroup/index_en.htm.

[22] See in particular the following opinions: on the
"Future of Privacy" (2009, WP 168); on the concepts of
"controller” and “processor" (1/2010, WP 169); on online behavioural
advertising (2/2010, WP 171); on the principle of accountability (3/2010, WP
173); on applicable law (8/2010, WP 179); and on consent (15/2011, WP 187).
Upon the Commission's request, it adopted also the three following Advice
Papers: on notifications, on sensitive data and on the practical implementation
of Article 28(6) of the Data Protection Directive. They can all be accessed at:
http://ec.europa.eu/justice/data-protection/article-29/documentation/index_en.htm.

[23] Available on the EDPS website: http://www.edps.europa.eu/EDPSWEB.

[24] EP resolution of 6 July 2011 on a comprehensive
approach on personal data protection in the European Union (2011/2025(INI), http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2011-0323&language=EN&ring=A7-2011-0244
(rapporteur: MEP Axel Voss (EPP/DE).

[28] In line with Article 52(1) of the Charter, limitations
may be imposed on the exercise of the right to data protection as long as the
limitations are provided for by law, respect the essence of the right and
freedoms and, subject to the principle of proportionality, are necessary and
genuinely meet objectives of general interest recognised by the European Union
or the need to protect the rights and freedoms of others.

[29] Directive 2002/58/EC of the European Parliament and of
the Council of 12 July 2002 concerning the processing of personal data and the
protection of privacy in the electronic communications sector (Directive on
privacy and electronic communications), OJ L 201, 31/07/2002, p. 37.

[30] Directive 2009/136/EC of the European Parliament and of
the Council of 25 November 2009 amending Directive 2002/22/EC on universal
service and users’ rights relating to electronic communications networks and
services, Directive 2002/58/EC concerning the processing of personal data and
the protection of privacy in the electronic communications sector and
Regulation (EC) No 2006/2004 on cooperation between national authorities
responsible for the enforcement of consumer protection laws Text with EEA
relevance; OJ L 337 , 18.12.2009, p. 11.

[31] Adopted and opened for signature, ratification and
accession by the United Nations General Assembly resolution 44/25 of 20.11.1989.

[32] Adopted by the International Conference of Data
Protection and Privacy Commissioners on 5 November 2009. Cf. also Article 13(3)
of the proposal for a Regulation on a Common European Sales Law
(COM(2011)635final).

[35] Regulation (EC) No 45/2001 of the European Parliament
and of the Council of 18 December 2000 on the protection of individuals with
regard to the processing of personal data by the Community institutions and
bodies and on the free movement of such data; OJ L 008 , 12/01/2001, p.1.

[36] Op. cit, footnote 34.

[37] Council Decision 2008/615/JHA of 23 June 2008 on the
stepping up of cross-border cooperation, particularly in combating terrorism
and cross-border crime, OJ L 210, 6.8.2008, p. 1.

[38] Building on Article 5(1) of Council Framework Decision
2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of
exercise of jurisdiction in criminal proceedings, OJ L 328, 15/12/2009, p. 42;
and Article 13(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on
the implementation of the rules on competition laid down in Articles 81 and 82
of the Treaty, OJ L 1, 04.01.2003, p.1.

[39] Building on Article 18(1) of Directive 2000/31/EC of
the European Parliament and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular electronic commerce, in
the Internal Market ('Directive on electronic commerce'), OJ L 178, 17.7.2000,
p. 1.

[40] Cf. for the interpretation, e.g. Court of Justice of
the EU, judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia
(C-73/07, ECR 2008 p. I-9831).

[41] OJ C , , p. .

[42] OJ C , , p. .

[43] OJ L 281, 23.11.1995, p. 31.

[44] OJ L 8, 12.1.2001, p. 1.

[45] Regulation (EU) No 182/2011 of the European Parliament
and of the Council of 16 February 2011 laying down the rules and general
principles concerning mechanisms for control by Member States of the
Commission’s exercise of implementing powers, OJ L 55, 28.2.2011, p. 13.

[46] OJ L 176, 10.7.1999, p. 36.

[47] OJ L 53, 27.2.2008, p. 52.

[48] OJ L 160 of 18.6.2011, p. 19.

[49] ABM: Activity-Based Management – ABB: Activity-Based Budgeting.

[50] As referred to in Article 49(6)(a) or (b) of the
Financial Regulation.

[51] Details of management modes and references to the
Financial Regulation may be found on the BudgWeb site: http://www.cc.cec/budg/man/budgmanag/budgmanag_en.html